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THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


GIFT  OF 

James  R.  Hutter 
'ii7  Bus.  Adm. 


THE 


LAW    OF    RAILWAYS 


EMBRACINQ 

THE  LAW  OF  CORPORATIONS,  EMINENT  DOMAIN,  CONTRACTS, 

COMMON   CARRIERS,   TELEGRAPH   COMPANIES,   EQUITY 

JURISDICTION,  TAXATION,   THE  CONSTITUTION, 

RAILWAY  INVESTMENTS,   &c. 


BY 


ISAAC   F.   REDFIELD,   LLD. 


SIXTH   EDITION, 

BY 

J.    KENDRICK     KINNEY. 


Vol.  I. 


BOSTON: 
LITTLE,   BROWN,  AND   COMPANY. 

1888. 


Copyright,  1888, 
By  Little,  Brown,  and  Comi'ant. 

y 

£Z47fr 


Universitt  Press  ; 
Jons  Wilson  and  Son,  Cambridge. 


K 

Si 


PREFACE   TO   THE   SIXTH   EDITION. 


It  is  hoped  that  nothing  may  be  found  too  seriously 
amiss  in  this  new  edition  of  a  book  which  now  may  be 
called  an  old  one.  Pains  have  been  taken  to  make  it  not 
unworthy  of  a  place  by  the  side  of  those  which  have  pre- 
ceded it ;  but  the  effort  has  not  been  without  its  embar- 
rassments. Since  the  publication  of  the  last  edition  the 
reports  have  overflowed  with  an  ever-increasing  number  of 
cases  in  this  field  of  the  law ;  and  it  has  been  a  work  of 
no  small  difficulty  to  find  in  the  general  mass  the  decisions 
bearing  on  the  topics  originally  treated,  and  so  to  apply 
them  as  to  keep  the  work  within  its  former  compass,  and 
still  to  leave  it  not  less  complete  as  a  present  statement  of 
the  law  of  railwa3's  than  it  was  left  by  its  author. 

The  form  of  the  book  has  been  left  unchanged,  and  the 
text  also,  except  in  a  very  few  passages  which  had  escaped 
the  proof-reader,  or  which  bore  on  a  state  of  things  that 
has  now  passed  away.  The  old  notes,  however,  have  been 
freely  rewritten  in  order  to  make  room  for  new  matter. 

J.  K.  K. 
Chicago,  November,  1887. 


AUTHOR'S   PREFACE   TO   THE   FIFTH   EDITION. 


We  have  made  no  change  in  the  arrangement  of  the 
work,  in  this  edition,  except  to  place  the  title  of  each  sep- 
arate portion  of  the  work  on  the  leaf  preceding  it,  and  to 
number  the  Parts,  and  place  their  titles  on  the  first  page 
of  the  Table  of  Contents,  as  a  Summary  ;  thus  enabling 
any  one  to  see  at  a  glance  what  the  work  contains.  It 
will  thus  be  seen  that  it  really  embraces  the  discussion  of 
thirteen  distinct  topics  of  law,  in  each  of  which  is  em- 
braced an  analysis  of  the  law,  almost  as  comprehensive 
and  complete  as  a  distinct  treatise.  The  Parts  upon 
Corporations  ;  Common  Carriers  of  Goods  and  Passen- 
gers ;  Telegraphs  ;  Mandamus  ;  Certiorari,  and  some 
others,  are  complete  treatises,  and  all  the  Parts  embrace 
everything  pertaining  to  railways,  and  much  more. 

The  plan  of  the  work  is  novel,  but  it  seems  the  only  one 
suited  to  such  a  work ;  and  by  striking  out  nearly  all  the 
opinions  in  the  notes,  and  rearranging  to  some  extent 
the  other  portions  of  the  notes,  so  as  to  bring  them  into 
the  same  order  as  if  now  prepared  for  the  first  time,  we 
have  saved  nearly  space  enough  for  the  new  matter  added, 
and  at  the  same  time  have  been  able  to  have  the  work 
come  nearer  its  original  ideal  —  that  of  giving  the  syste- 
matic analysis  of  principles  in  the  text,  and  a  complete 
digest  of  all  the  cases  in  the  notes  —  than  has  ever  been 
possible  before. 


PREFACE   TO    THE    FIFTH    EDITION.  V 

The  American  opinions  found  in  the  notes  to  the  for- 
mer editions  were  originally  inserted,  because  they  con- 
stituted, to  some  extent,  the  basis  of  important  doctrines 
connected  with  the  law  of  railways,  and  could  not  be 
readily  obtained  elsewhere  by  the  profession  in  many  por- 
tions of  the  country.  But  now  that  we  are  able  to  fur- 
nish the  leading  American  cases  upon  the  subject  in 
separate  volumes,  to  those  who  desire  to  obtain  them  in 
that  form,  there  seems  no  propriety  in  longer  incumber- 
ing the  pages  of  our  principal  work  with  any  of  them, 
however  indispensable  it  might  formerly  have  been.  And 
although  many  law  book-makers  have  adopted  that  course, 
and  some  of  high  authority,  at  an  early  day,  we  are  glad 
to  see  that  the  fashion  is  going  into  disuse,  as  we  have 
long  since  become  convinced  it  was  not  the  best  mode, 
either  in  writing  or  editing  law  books,  and  have  elimin- 
ated as  fast  as  possible  all  extended  opinions  from  all 
law  treatises  with  which  we  have  had  to  do  of  late. 
Where  an  opinion  contains  the  basis  of  the  law  upon  a 
particular  point,  as  some  of  the  English  cases  do,  and 
possibly  some  few  of  the  American  cases,  it  may  as  well 
be  given  in  that  form ;  and  when  a  brief  extract  from  an 
opinion  gives  the  very  point  we  desire,  it  comes  with  more 
weight  in  that  form  than  any  other ;  but,  beyond  that, 
opinions  should  never  be  permanently  retained  in  text- 
books. 

The  additions  to  the  present  edition,  both  in  the  text 
and  notes,  have  been  very  large  for  the  short  time  since 
the  former  one,  covering  about  a  hundred  pages  in  the 
work  itself,  besides  the  appendix  of  the  latest  cases,  re- 
ported while  the  work  was  in  press.  AVhen  any  late  case 
establishes  any  new  point  it  is  inserted  in  the  text,  and 
the  exact  point  of  all  the  new  cases  is  given  in  the 
notes,  when  it  varies  in  an}'  particular  from  those  before 
stated. 


Vi  PREFACE   TO    THE   FIFTH    EDITION. 

We  have  not  the  vanity  to  suppose  the  work  will  be 
found  perfect,  or  complete  in  all  its  details.  That  is 
scarcely  to  be  expected  in  any  work  covering  so  wide  a 
space.  But  we  believe  it  contains  as  much  that  will  be 
found  useful  and  instructive,  both  to  students  and  the 
profession  generally,  as  it  would  be  reasonable  to  expect 
in  the  same  space,  without  such  an  extreme  degree  of 
condensation  as  greatly  to  impair  both  its  clearness  and 
completeness. 

In  taking  leave  of  our  professional  brothers,  we  beg  to 
assure  them  how  deeply  and  gratefully  we  appreciate  their 
uniform  kindness  and  respect ;  and  our  only  surprise  is, 
that,  in  our  humble  and  patient  way  of  daily  toil  on  their 
behalf,  we  should  have  been  able  to  earn  so  much  at  their 
hands.  We  will  not,  however,  impugn  their  good  sense 
and  discrimination  by  presuming  to  doubt  its  propriety, 
however  difficult  it  may  be  for  us  always  to  compre- 
hend it. 

I.  F.  R. 

Boston,  Jan.  1,  1873. 


SUMMAHY  OF  CONTENTS. 


PART  I. 

The  Law  op  Preliminary  Associatioxs 5-38 

PART  II. 
The  Law  of  Corporations 39-215 

PART   III. 
The  Law  of  Right  of  Way,  Eminent  Domain,  etc.    .     .     .     217-402 

PART   IV. 

The  Law  of  Contracts  as  applied   to  the  Construction 

of  Railways  and  Telegraphs;  Tolls,  etc 403-463 

PART   V. 

The   Law   of   Liability  for   Fires;    Injuries   to   Domestic 

Animals;  Fences 465-533 

PART   VI. 

The  Law  of  Agency  as  applied  to  Railways 535-670 

PART   VII. 

The  Law  of  Mandamus  and  other   Prerogative   Remedies 

as  applied  to  Railways 671-727 


ANALYSIS  OF  CONTENTS. 


CHAPTER    I. 

INTRODUCTION. 


PlOl 

1.  Origin  of  railways  in  England 1 

2.  First  built  on  one's  own  land,  or  by  special  license  froni  the  owner    ...  1,  2 

3.  Qncstions  in  regard  to  private  railways 2 

4.  liailways  in  America,  public  grants 2 

6.  Use  of  steam-power  on  railways 2 

6.  The  franchise  of  a  railway  not  necessarily  corporate,  nor  unassignable  .    .  3 


PART  I. 
THE   LAW  OF    PRELIMINARY  ASSOCIATIONS. 

CHAPTER  II. 

PUBLIC   RAILWAYS   AS   CORPORATIONS.  —  PRELIMINARY   ASSOCIATIONS. 

SECTION    I. 
MODE   OF   INSTITDTING    RAILWAY   PROJECTS. 

1.  Subscribers'  associations  in  England 7 

2.  Subscribers  bound  by  subsequent  charter 7,  8 

3.  Issue  and  registry  of  scrip  certificates 8 

4.  Original  subscriber  liable  to  unregistered  purchaser 8 

5.  Holders  of  scrip  entitled  to  registry 8,9 

6.  Preliminary  associations  not  common  in  this  country 9 

7.  Petitioners  for  incorporation  file  plans  and  surveys         9 

8.  English  statute  of  18(52 ' 10 

0.  Prehiiiiiiary  associations  may  be  registered 10 

10.  Not  now  held  responsible  as  partners  in  England 10 

SECTION  n. 

CONTRACTS   OF   THE   PROMOTERS   NOT   BINDING    AT    LAW   ON    THE    COMPANY. 

1.  In  this  country  promoters  bind  only  themselves  and  associates     .     .     .     .10,11 

2.  Contracts  of  promoters  not  enforceable  by  company 11,  12 

'6.  But  by  consenting  to  a  decree  in  equity  setting  up  the  contract,  the  com- 
pany will  be  held  to  have  adopted  it 12 


X  ANALYSIS   OP   CONTENTS. 

SECTION   III. 

SUBSCRIBERS   TO   THE    PRELIMINARY    ASSOCIATION    INTER    SE8B. 

1.  Liability  for  acts  of  directors  limited  by  terms  of  subscription    ....     12,  13 

2.  Association  not  binding  until  preliminaries  are  complied  with 13 

3.  Contracts,  how  far  controlled  by  oral  representations  of  directors   ....       13 

4.  Subscribers  not  excused  from  j)aying  calls  by  contract  of  directors     .     .      13,14 

5.  Not  liable  for  expenses,  except  by  terms  of  agreement 14 

6.  Deeds  of  association  generally  make  provision  for  expenses 14 

7.  One  who  obtains  shares,  without  executing  the  deed,  not  bound  to  contribute       14 
n.  12.  No  relation  of  general  partnership  subsists  between  subscribers     .     14,  15 

SECTION  IV. 

CONTRACTS  OF  THE  PROMOTERS  ADOPTED  BY  THE  COMPANY. 

1.  Liability  in  general  transferable  with  assent  of  creditors.    But  not  if  inequi- 
table     15,  16 

n.  3.  Powers  of  provisional  company  to  contract  limited  by  statute.     ...      16 

SECTION  V. 

HOW    CONTRACTS    OF   THE   PROMOTERS    MAY    BE   ADOPTED    BY    THE    COMPANY. 

Company  cannot  assume  the  benefit  without  the  burden 16 

SECTION  VL 

CONTRACTS   BETWEEN    THE    PROMOTERS    AND  0PP03ERS    OP   A    BILL   FOR   THE 
CHARTER   OF    A    RAILWAY. 

1.  English  cases  numerous  and  important 17 

2-5.  Lord  Eldon's  opinion  in  case  of  Vauxhall  Bridge  Co 17-19 

SECTION   VIL 

CONTRACTS  OF  THE  PROMOTERS  ENFORCED  IN  EQUITY. 

Case  of  Edwards  v.  Grand  Junction  Railway 20-22 

SECTION   VIIL 

CONTRACTS   OF   THE    PROMOTERS    BINDING    ON    THE    COMPANY    AT    LAW. 

Case  of  Howden  v.  Simpson 23,  24 

SECTION  IX. 

WHAT  CONTRACTS  BETWEEN  THE  PROMOTERS  OF  RAILWAYS  AND  OTHERS  WILL  BE 
ENFORCED,  EITHER  IN  LAW  OR  EQUITY,  AGAINST  THE  CONTRACTING  PARTIES 
OR    THE    COMPANY. 

1.  Contract  to  take  land  of  opposing  party 24,25 

2.  Contract  prejudicial  to  the  public 25 

n.  3.  Other  contracts  which  the  courts  will  enforce 25,  26 


ANALYSIS   OF   CONTENTS.  XI 

SECTION  X. 

CODRTS   OF    EQUITY    WILL   ENFORCE    CONTRACTS    WITH    THE    PROMOTERS. 

Bona ^e  contract,  not  evasive  of  statute,  valid 26 

SECTION  XI. 

80CII    CONTRACTS    ENFORCED    WHERE    THE    RAILWAY    IS    ABANDONED. 

1.  Where  a  certain  sum  is  to  be  paid  to  quiet  opposition 27 

2.  Merely  provisional  contracts  not  always  enforced 27-29 

SECTION  XII. 

PRACTICE   OF    CODRTS    OF    EQUITY    IN    DECREEING    SPECIFIC    PERFORMANCE. 

1.  Mutual  arrangements  protected  in  chancery 29,30 

2,  But  decisions  arc  conflicting.     In  cases  of  doubtful  riglit,  plaintiff  is  remit- 

ted to  common-law  remedies 30 

n.  2.  Stutemt'nt  of  cases 30,  31 

SECTION   XIII. 

SPECIFIC    PERFORMANCE    IN    COURTS    OF    EQUITY. 

Object  of  courts  to  compel  good  faith  when  a  definite  contract  is  made     .     .    81,32 

SECTION  XIV. 

COURTS    OF    EQUITY    MAY    RESTRAIN    A    PARTY    FROM    OPPOSITION   OR    PETITION    IN 

PARLIAMENT. 

1.  Such  cases  not  common  in  practice 32,  33 

2.  Such  cases  not  readily  recognized 33 

SECTION  XV. 

CONTRACTS    TO    WITHDRAW    OPPOSITION    TO    RAILWAY  PRO,TECTS,  AND    TO    KEEP    T\l\> 
SECRET,    AGAINST    SOUND    POLICY,    AND    WOULD    SEEM    TO    BE    ILLEGAL. 

1.  Principle  of  foregoing  decisions  obscure 33,  34 

2.  Not  adi>i)ted  in  this  country  unless  tirms  inserted  in  charter 34 

3.  Recent  change  of  views  in  EngUsii  courts 35 

3-5.  Statement  of  late  case  in  which  principle  of  Edwards  v.  Grand  Junction 

Railway  is  doubted 35 

6.  Act  of  incorporation  should  not  be  varied  by  oral  testimony 35 

7.  Contracts  to  quiet  opposition  not  favored  in  this  country 36 

n.  5.  Some  English  and  American  decisions 30,  37 

8.  Regarded  as  ultra  virrs 37 

9.  May  be  enforced,  if  legislature  not  exposed  to  be  misled 37,  88 


Xii  ANALYSIS   OF   CONTENTS. 

PART  II. 
THE  LAW   OF  CORPORATIONS. 

CHAPTER  III. 

RAILWAYS    AS   CORPORATIONS. 

SECTION    I. 
ORIGIN   AND   DIFFERENT    CLASSES    OF    CORPORATIONS. 

1.  Tlie  existence  of  coqjorations  is  of  early  date 41 

2.  Tlie  different  kinds  of  corporations.     Sole  and  aggregate 41,42 

3.  This  work  treats  chiefly  of  aggregate  joint-stock  corporations 42 

4.  Corporations  are  eitiier  ecclesiastical  or  lay 42 

5.  So  they  are  divided  into  eleemosynary  and  civil  corporations     .     .     .     .     42,  43 

6.  Corporations  are  public  or  private 43 

7.  Private  corporations,  where  stock  is  private  property 43 

8.  Public  corporations,  where  stock  is  owned  and  the  management  retained  by 

the  state 43 

9.  It  does  not  affect  the  private  character  of  a  corporation  tliat  the  state  or 

the  Uniteil  States  own  a  portion  of  the  stock 44 

10.  Distinction  between  corporations  and  partnerships.     The  latter  defined      .  44 

11.  Further  definition  of  the  distinction  between  corporations  and  partnerships  45 

SECTION  II. 

HOW  CORPORATIONS  ARE  CREATED. 

1.  Corporations  created  by  grant  of  the  sovereignty.    Tliis  may  be  proved  by 

implication  or  by  presumption 45,  46 

2.  The  sovereignty  may  establish  corporations  by  general  act,  or  by  delega- 

tion or  procuration 46 

3.  Different  forms  of  defining  a  corporation 46,  47 

4.  Tlie  corporate  action  of  corporations  restricted  to  state  creating  them     .     .       47 

5.  It  may  act  by  its  directors  and  agents  in  other  states 47,  48 

n.  10.  But  cannot  properly  transfer  its  entire  business  to  another  state   .     .       47 

6.  A  college  located  at  one  place  cannot  establish  a  branch  at  another    ...      48 

SECTION   III. 

CONSTITUTIONS   OF    CORPORATIONS,    AND    MODE    OF    PROOF. 

1.  Definitions  of  the  diflFerent  senses  of  the  term  "  constitution,"  as  applied  to 

corporations 49 

2.  How  corporations  may  be  composed  or  constituted 40 

n.  1.  The  question  illustrated  more  in  detail 49,50 

3.  Distinction  between  legislative,  electoral,  and   administrative   assemblies 

not  essential 50 

4.  Corporation  can  act  only  by  its  nnme.     Subject  discussed 50 

5.  Any  deviation  from  the  name  allowed,  if  the  substance  and  sense  be  pre- 

served       50,  51 

0.  Courts  of  equity  will  not  restrain  corporations  from  applying  for  enlarged 

powers 51 

7.  Change  of  constitution.     ECfect  of  change  of  name 51 


ANALYSIS   OF   CONTENTS.  Xlll 

8.  Courts  of  equity  will  enJDin  a  new  corporation  from  assuming  the  name  of 

one  of  estiibiisiied  creilit 51,52 

y.  Promissory  note  [)ayablo  to  A.  IJ.,  treasurer  of  a  corporation,  n)ay  be  sued 
in  the  name  of  A.  B.  Promissory  note  lor  subscription  waives  condi- 
tion       52 

10.  Corporation  may  be  estopped  to  deny  its  existence.     How  described .     .     52,  5; J 

11.  How  tlic  existence  and  non-existence  of  corporations  may  be  proved  ...       63 

12.  Party  to  written  contract,  payable  to  corporation,  cannot  deny  corporate 

existence 63 

13.  Proof  of  corporation  in  fact  sufficient  in  all  cases 63 


CHAPTER  IV. 

PKOCEEDINGS    UNDER   TUE   CHAKTER. 

SECTION  I. 

ORGANIZATION    OF    THE    COMPANT. 

1.  Conditions  precedent  must  be  performed 54 

n.  (b).  Seiuile,  however,  that  there  is  a  distinction  between  conditions    .     54,  55 

2.  Stock,  in  general,  must  all  be  subscribed 55 

3.  Charter-location  of  road,  condition  precedent 56 

4.  Colorable  subscriptions  binding  at  law 5G 

5.  Conditions  subsequent,  how  enforced 56,  57 

6.  Stock  distributed  according  to  charter 57 

7.  Commissioners  must  all  act 57 

8.  Defect  of  organization  must  be  specially  pleaded 57 

9.  Question  cannot  be  raised  collaterally 68 

n.  (e).  SeniUe,  that  there  is  a  distinction  between  cases 58 

10.  liecords  of  company,  evidence 68 

11.  Membership,  what  constitutes,  and  how  maintained 59 

12.  Subscription  and  transfer  of  shares  generally  necessary 60 

13.  Offers  to  take  shares  not  enforced  iu  equity,  and  may  be  withdrawn  ...  60 

SECTION  II. 

ACCEPTANCE   OF   CHARTER,    OK    OF    MODIFICATION    THEREOF. 

1.  New  or  altered  charter  must  be  formally  accepted 60,61 

2.  Subscription  for  stock  sometimes  sufficient 01 

.*].  Inoperative  uidcss  made  as  required Gl 

4.  Assent  to  beneficial  grant  presumed 61 

5.  Matter  of  presumption  and  inference 61 

6.  Organization  or  acceptance  of  charter  may  be  shown  by  parol 61 

7.  Corporators  assenting  are  bound 61,  62 

8.  Charter  subject  to  recall  until  accepted 62 

SECTION  III 

ORDINARY    POWERS.  —  CONTROL    OF    BIAJORITY. 

1.  Ordinary  franchises  of  railways,  like  those  of  other  private  corporations, 

aggregate 62, 60 

2,  3.  Implied  right  of  majority  to  control 63 

4.  Cannot  change  organic  law 64 

6.  Except  in  the  prescribed  mode "* 

6.  Nor  accept  amended  charter 64,  65 


XIV  ANALYSIS   OP   CONTENTS. 

7.  Nor  dissolve  corporation 65 

8.  May  obtain  enlarged  powers 65 

9.  Equity  will  not  restrain  the  use  of  funds  for  that  purpose 65 

10.  But  will,  for  conversion  of  canal  into  railway 66 

11.  Right  to  interfere  lost  by  acquiescence 66 

12.  Acquiescence  of  one  plaintiff,  fatal 67 

13.  Kaiiway  a  public  trust 67 

14.  Suit  maintained  by  rival  interest G7,  68 

15.  Equity  will  not  restrain  majority  from  winding  up  except  for  fraud,  &.c.     .  68 


SECTION  IV. 

MEETINGS   OF    COMPANY. 

1.  Meetings,  special  and  general 69 

2.  Special,  must  be  notified  as  required 69 

3.  Special  and  intporUmt  matters,  named  in  notice 69,  70 

4.  Notice  of  general  meetings  need  not  name  business 70 

5.  Adjourned  meetings,  still  the  same 70,  71 

6.  Company  acts  by  meetings,  by  directors,  by  agents 71 

7.  Courts  presume  meetings  held  at  proper  place 71 

8.  Every  shareholder  may  vote,  but  not  by  proxy 71,  72 

9.  General  owner  of  shares  entitled  to  vote  and  act  as  member 72 

10.  Trustees  act  as  owners 72 

11.  Stock  issued  in  the  name  of  B.  to  secure  a  debt,  from  the  corporation  to  A., 

cannot  be  voted  on 72,  73 

12.  Shares  held  as  collateral  security  cannot  be  changed 73 


SECTION   V. 

ELECTION    OF    DIRECTORS. 

1.  Should  be  at  general  meeting,  or  on  special  notice 73 

2.  Shareholders  may  restrain  their  authority 73,  74 

3.  Company  bound  by  act  of  directors  c/e/ac<o 74,75 

4.  Act  of  officer  c/e^ado,  binds  third  persons 75 


SECTION   YI. 

MEETINGS    OF    DIRECTORS. 

1.  Every  director  should  be  notified 75,  76 

2.  Adjourned  meeting  requires  no  special  notice 76,  77 

3.  Board  not  required  to  be  kept  full 77 

4.  Usurpations  tried  by  shareholders  or  courts 77 

5.  Usage  will  often  excuse  irregularities 77 

0.  Decisions  of  majority  usually  valid 77,78 

n.  8.  Records  of  proceedings,  evidence 78,  79 

7.  The  action  must  be  taken  at  a  formal  meeting. 79 


SECTION   VII. 

QUALIFICATION    OF    DIRECTORS. 

1.  A  contractor  cannot  be  a  director 79 

2.  Aliter  of  the  company's  banker 80 

3.  Mortgaging  of  stock  does  not  disqualify 80 

4.  Bankruptcy  will  not  vacate  office,  nor  will  absence 80 

5.  Company  compelled  to  fill  vacancies  in  board 80 


ANALYSIS   OF    CONTENTS.  XV 

CHAPTER   V. 

PREROGATIVE   KUANCIIISE3. 

1.  Control  of  internal  comnninication  in  a  state  a  prerogative  franchise  .     .     .      81 

2.  Grant    tliercof  confers   powers    pertaining    exclusively    to   sovereignty,  as 

taking  tolls,  and  the  right  of  eminent  domain 81 

CHAPTER  VI. 

BY-LAWS    AND    STATUTES. 

SECTION    I. 
POWER   OF   MAKING    BY-LAWS    OR    6TATCTE8. 

1.  May  make  by-laws  to  control  conduct  of  passengers 82 

n.  (a)  Or  any  reasonable  by-law  fit  to  effectuate  objects  of  incorporation  .      82 

2.  Tliey  must  be  reasonable  and  not  against  law 82,  83 

3.  Power  may  be  implied,  where  not  express 83 

4.  By-laws  need  not  be  in  any  particular  form  unless  specially  required      .     83,  84 

5.  Usual  ])ower  of  Knglish  comjianies 84 

6.  Model  code  of  by  laws  framed  by  Hoard  of  Trade  in  England 84 

7.  Company  may  demand  higher  fare  if  paid  in  cars 85 

8.  Public  statutes  control  by-laws 85 

9.  Cannot  make  by-laws  subjecting  shares  to  forfeiture 85,  86 

10.  Cannot  refuse  to  be  responsible  for  baggage 86 

11.  Statutes  operate  on  members  from  promulgation ;  on  others  from  notice  of 

the  same 86 

12.  Regulations,  for  accommodation  of  passengers,  must  yield  to  the  right  of 

others  to  be  carried 86 

SECTION  II. 

BY-LAWS    REGULATING   THE    USE    OF    STATIONS    AND    GKOCNDS. 

1.  May  exclude  persons  without  business 87 

2.  May  regulate  the  conduct  of  others 87 

3.  Superintendent  may  expel  for  violation  of  rules 88 

4.  Probable  cause  will  justify 88 

6.  In  civil  suit  must  prove  violation  of  rules 88,89 

G.  Regulation  of   stations  and  traflRc  by  means  of  injunction.     Equality  of 

charges 89 

7.  Through  trains  will  not  be  required  unless  reasonably  necessary  for  public 

accommodation 89 

8.  Mode  of  enforcing  search  warrants  in  freight  stations 89 

9.  The  right  of  railway  companies  to  exclude  persons  having  no  business, 

from  their  stations       ' 90 

10.  Company   bound  to  maintain  platforms  about  passenger  stations  in  safe 

condition 00 

SECTION  III. 

BY-LAWS    OR    RULES   AS    TO   PASSENGERS. 

1.  By-laws  considered  as  statutes 91 

2.  Considered  as  rules,  or  regulations 91,  92 

3.  Requiring  larger  fares  for  shorter  distances 92 


XVI  ANALYSIS   OF   CONTENTS. 

4.  Requiring  passengers  to  go  through  in  same  train 92-95 

n.  6.  Discussion  of  cases  in  point 93-95 

5.  Arrest  of  passenger  by  company's  servants 95,  96 

6.  IIow  far  company  responsible .96 

7.  Company  liable  for  act  of  servant 96 

8.  By-law  must  be  published 96,  97 

9.  Excluding  merchandise  from  passenger-trains 97 

10.  Discrimination  between  fare  paid  in  cars  and  fare  paid  at  stations       .     .      97-99 
n.  (e).  Regulations  requiring  passengers  to  buy  and  exhibit  tickets,  &c.       97,98 

11.  Liability  for  e.xcess  of  force 100 

I'J.  (Officer  de  facto  may  enforce  rules  of  company 100 

13.  Company  cannot  enforce  rule  against  passenger,  when  itself  in  fault  .       100,  101 

14.  Consent  of  company  to  tariff  of  fares,  how  presumed 101 

15.  Discrimination  on  the  ground  of  color 101 

16.  Regulations  and  duties  of  street  railways 102 


CHAPTER   VII. 

CAPITAL    STOCK. 

SECTION  L 

LIMITATIONS. 

1.  General  rights  of  shareholders 103 

2.  Capital  stock  not  the  limit  of  property 103 

3.  Cannot  mortgage,  unless  on  special  license  of  the  legislature 103 

SECTION  II. 

COXDITIONS   PRECEDENT,   WHICH   THE   PUBLIC   AUTHOEITIES   MAT   ENFORCE. 

1.  Stock,  if  limited,  must  all  be  subscribed 104 

2.  Payments  at  time  of  subscription 104,  105 

SECTION  III. 

SHARES    PERSONAL   ESTATE. 

1.  Railway  shares  personal  estate  at  common  law 105,  106 

2.  Not  an  interest  growing  out  of  land,  nor  goods,  wares,  and  merchandise       .     106 

3.  Early  cases  treated  such  shares  as  real  estate 106,  107 


CHAPTER  VIII. 

TRANSFER   OF   SHARES. 

SECTION    I. 
RESTRICTIONS    UPON    TRANSFER. 

1.  Express  provisions  of  charter  to  be  observed 108 

2.  If  not  made  exclusive,  held  directory  merelj' ...       109,  110 

3.  Unusual  and  inconvenient  restrictions  void  as  in  restraint  of  trade      .      110,  111 


ANALYSIS    OF    CONTENTS.  Xvii 

4.  Tlie  company  may  have  a  lien  on  stock  for  the  indebtedness  of  the  owner  .     Ill 
6.   Hut  sucii  lien  is  not  to  be  implied 112 

6.  Wiierc  transfer  is  wrongfully  refused,  vendee  may  recover  value  of  tlic 

company 112 

SECTION   II. 

CONTUACT3    TO    TKANSFER    STOCK. 

1.  Transfer  under  English  statutes.     Eegistered  companies 11. "> 

2.  Contracts  to  transfer  stock  not  yet  acquired,  vali<l  if  tonay(f/e     .     .     .       l].*],  114 
n.  3.  Effect  of  rule  requiring  assent  of  directors 113,114 

3.  Vendor  must  have  the  stock,  at  tiie  time  agreed  on 114 

4.  Force  of  usages  of  stock-exchantje 114-110 

5.  Company  will  reform  the  registry  at  its  peril lUj 

G,  10.  Company  may  compel  one  to  accept  shares  on  contract    .     .     .     .       116,  117 

7.  Stock  standing  in  joint  names  belongs  to  survivors 110 

8.  Mode  and  effect  of  correcting  registry 116,117 

9.  If  the  company  vary  the  contract,  specific  performance  will  be  denied     .     .     117 

10.  Closing  contracts  by  offer  and  aci'optance 117 

11.  Form  of  transfer.     Two  may  jf)in  in  one  transfer 117 

SECTION   III. 

INTERVENING    CALLS,    OR    ASSESSMENTS. 

1.  Vendor  must  pay  calls,  if  that  is  requisite  to  pass  title  .     ,     .    " 118 

n.  (a)  But  as  between  parties  liability  depends  on  agreement 118 

2.  Generally  it  is  matter  of  construction,  and  inference 118 

n.  2.  Calls  paid  by  vendor  after  executing  transfer 118,  119 

SECTION   IV. 

TRANSFER   BY    DEKD  IN    I3LANK. 

1,  2.  Blank  transfer  formerly  held  invalid  in  England 119,  120 

3.  Kule  different  in  America 120 

4.  Deed  executed  in  blank  and  filled  by  procuration  valid 120 


SECTION   V. 

SALE    OF    SrURIOUS    SHARES.  —  RULES    OF    STOCK    EXCHANGE. 

1.  Vendor,  who  acts  honajhle,  must  refund  money 121 

«.  1.  Discussion  of  tiie  extent  of  implied  warranty 121,122 

3.  No  implied  warranty  in  such  case  which  will  entitle  tlie  vendee  to  special 

ilamage     ..." 122 

4.  Rule  of  the  stock-exchange,  made  after  the  sale,  not  binding  on  parties. 

How  far  such  rules  bind  parties 122,  123 

SECTION   VI. 

READINESS    TO   PERFORM.  —  CUSTOM    AND    USAGE. 

1.  Vendor  must  be  ready  and  offer  to  convey 124 

2.  Vendee  must  be  ready  to  pay  price 1-4 

8.  General  custom  and  local  usage 124.  125 

n.  3.  Oral  evidence  to  explain  memoranda  of  contract 124,12-5 

4.  The  party  taking  the  initiative  must  prepare  the  writings 125 

VOL.  I.  — b 


Xviii  ANALYSIS   OP   CONTENTS. 

SECTION   VII. 

DAMAGES.  —  SPECIFIC   PERFORMANCE. 

1.  Damages,  difference  between  contract  price  and  price  at  time  of  delivery    .     126 

2.  Equity  will  decree  specific  performance  of  contract  for  sale  of  shares        127,  128 
n.  (a)  When  like  shares  cannot  be  obtained  elsewhere 127 

SECTION   VIII. 

SPECIFIC    PERFORMANCE. 

1.  Specific  performance  decreed  against  the  vendee 128 

2.  This  was  denied  in  the  early  cases 129 

3.  Owner  of  original  sliares  may  transfer  them 120 

4.  Specific  performance  not  decreed  where  not  in  the  power  of  the  party       129,  130 


SECTION  IX. 

TRUSTEE   ENTITLED   TO   INDEMNITY    AGAINST   FUTURE   CALLS. 

1.  Trustee  entitled  to  indemnity,  on  general  principles 130 

2.  English  courts  hesitated  in  regard  to  railway  shares 130,  131 

3.  4.  Cases  reviewed 131,  132 

5.  Mortgagees  liable,  as  stockholders,  for  the  debts  of  the  company    ....     132 

6.  Ostensible  owner  must  respond  to  all  responsibilities 133,  134 

7.  Executors  responsible  personally 134 

8.  Mortgagor  is  entitled  to  redeem  on  restoring  the  shares  as  stipulated  in  his 

deed 134 


SECTION  X. 

FRAUDULENT   PRACTICES   TO   RAISE    THE    PRICE   OF    SHARES. 

1.  Courts  of  equity  will  vacate  sales  where  price  of  shares  is  raised  by  fraudu- 

lent practices 135,  136 

2.  Necessary  parties.     Extent  of  relief 136,  137 

3.  4.  Declaration  of  dividends,  none  being  earned,  e.  g.,  will  vacate  sales,  and 

subject  directors  to  indictment 137, 138 

5.  Equity  will  not  interfere  where  vendor  acted  bona  ^fide,  unless  the  shares 

were  valueless 138 

6.  Managers  of  company  liable  in  tort  to  party  injured 138 

7.  Purchase  of  shares  in  another  company  considered 139 

8.  Bona  Jide  purchaser  of  shares  fraudulently  issued  acquires  same  rights  as 

other  shareholders 139 


SECTION   XI. 

LIABILITY    OF    COMPANY    FOR    NOT    REGISTERING    TRANSFERS. 

1.  Company  is  liable  to  an  action 140 

2.  Wiiether  mandamus  will  lie  to  compel  record 141 

3.  Company  not  bound  to  record  mortgages  of  shares 141 

4.  Cirounds  of  denying  mnndamus 141,  142 

5.  Bill  in  equitv  most  appropriate  remedy 142 

6.  Rule  of  damages 142,143 

7.  Fraudulent  cancellation  of  an  unregistered  transfer  will  not  affect  the  title      143 


ANALYSIS   OF   CONTENTS.  XIX 

SECTION  XII. 

WHEN    CALLS    IlECOME    PERFECTED. 

1.  Calls  arc  made  when  tlie  sum  is  assessed  ;  notice  may  be  given  afterwards     143, 

144 

2,  3.  Directors  the  proper  authority  to  make  calls 14o 

4.  Manner  of  giving  notice  and  of  proof 145 

SECTION   XIII. 

TRANSFEK  BY  DEATH,  INSOLVENCY,  OR  MARRIAGE. 

1.  Mandamus  lies  to  compel  the  registry  of  successor 146 

8.  In  case  of  death,  jjcrsonal  representative  liable  for  calls 140,  147 

4.  Notice  requisite  to  perfect  tlie  title  of  mortgagee 147 

6.  Stock  in  trust  goes  to  new  trustees 147 

6.  Assignees  of  insolvents  not  liable  for  the  debts  of  the  company 147 

7.  Effect  of  marriage  of  feme  sole 147 

SECTION  XIV. 

LEGATEES    OF    SHARES. 

1.  Entitled  to  election,  interest,  and  new  shares,  but  not  to  bonds 148 

2.  Shares  owned  at  date  of  will  pass,  although  converted  into  consolidated 

stock 148 

3.  Consolidated  stock  subsequently  acquired  will  not  pass 148 

SECTION  XV. 

SHARES    IN    TRCST. 

1,  2.  Company  may  safely  deal  with  registered  owner 149 

3.  But  equity  will  protect  the  rights  of  ccs/h/s  7((c  <n(s< 150 

4.  Discussion  of  the  rights  of  cesiuf's  ^rue  <rKst  in  stock  certificates 150 

SECTION   XVI. 

THE  EXTENT  OF  TRANSFER  REQUISITE  TO  EXEMPT  FROM  CLAIM  OF  CREDITORS. 

1.  How  transfer  of  stock  perfected  as  to  creditors 150,  151 

2.  Reasonable  time  allowed  to  record  transfer 151 

3,4.  In  some  of  the  states  no  record  required 151,152 

n.  8,  Question  further  considered 152 

CHAPTER  IX. 

ASSESSMENTS   OU   CALLS. 

SECTION  I. 

PARTY    LIAnLE    FOR    CALLS. 

1.  Party  whose  name  appears  on  the  register  liable  for  calls 15.3 

2.  Bankrupts  remain  liable  for  calls 154 


XX  ANALYSIS   OF   CONTENTS. 

3.  Ces^iKs  7!ie  iriis<  not  liable  for  calls  in  law  or  equity 154,155 

4.  Trustee  compelled  to  pay  for  shares 155 

6.  Party  whose  name  ia  registered  may  sliow  that  it  is  improperly  there     .    .     155 

SECTION  II. 

I 

COLORABLE    SOBSCUIPTION3. 

1.  Colorable  subscriptions  valid 156 

2.  Directors  may  be  compelled  to  register  them 156,  157 

3.  Oral  evidence  to  vary  the  written  subscription  inailniissible   ....       157,  158 

4.  Register  evidence  although  not  made  in  tlie  time  prescribed 158 

5.  Confidential  subscriptions  void 158,  159 

6.  Shares  cannot  be  issued  to  secure  debts  of  company 159 

SECTION  III. 

MODE    OF    EyFORCING    PATMEXT. 

1.  Subscription   to   indefinite   stock  raises  no   implied   promise   to  pay  the 

amount  assessed 159-161 

2.  If  shares  are  definite,  subscription  implies  a  promise  to  pay  assessments. 

Right  of  forfeiture  a  cuuuUative  remedy 161 

•3.  "Whetlier  issuing  new  stock  will  bar  a  suit  against  subscriber,  qnmre    .       162,  16:3 

4.  It  would  seem  not 163,  164 

5.  But  the  requirements  of  the  charter  and  general  laws  of  the  state  must  be 

strictly  pursued  in  declaring  forfeiture  of  stock 164,  165 

6.  Notice  of  sale  must  name  place 165 

7.  Validity  of  calls  not  affected  by  misconduct  of  directors  in  other  matters   .     165 

8.  Proceedings  must  be  regular  at  date 165 

9.  Acquiescence  often  estops  the  party 165 

10.  Forfeiture  of  shares 165,  166 

11.  Irregular  calls  must  be  declared  void,  before  others  can  be  made  to  supply 

the  place 166 

SECTION  IV. 

CREDITORS    MAY    COMPEL   PAYMENT    OF    SUBSCRIPTIONS. 

1.  Mandamus  to  compel  company  to  collect  of  subscribers 166 

2-4.  Amount  due  from  subscribers,  a  trust  fund  for  the  benefit  of  creditors     .  167 

5.  Same,  though  a  state  own  tlie  stock 167 

6,  7.  Diversion  of  tlie  funds  from  creditors  a  violation  of  contract  on  the  part 

of  the  company,  and  a  state  law  authorizing  it  invalid 167 

8,  9.  General  doctrine  above  stated  found  in  many  American  cases    .     .       167,  168 

10.  Judgment  creditors  may  bring  bill  in  equity 168 

11.  Promoters  of  railways  liable  as  partners,  for  expenses  of  procuring  charter     169 

12.  Railway  company  may  assign  calls  before  due,  in  security  inr  bona  fide  debt. 

No  notice  required  to  perfect  assignment  against  attachments  or  judg- 
ment liens 169 


SECTION   V. 

CONDITIONS    PRECEDENT    TO    MAKING    CALLS. 

1.  Conditions  precedent  must  be  performed  before  calls 170 

2.  Collateral,  or  subsequent  conditions  otherwise 170-173 

3.  Definite  capital  must  all  be  subscribed  before  calls 174 

4.  Same  where  defined  by  the  comi)any,  as  in  the  charter 174,  175 


ANALYSIS   OF   CONTENTS.  XXI 

5.  Conditional  subscriptions  not  to  be  reckoned 175 

6.  Legislature  cannot  repeal  conditions  precedent 17ti 

7.  Limit  of  assessments  cannot  be  exceeded  tor  any  purpose 170 

8.  Where  charter  fails  to  limit  stock,  corporation  may 176,  177 

9.  Alteration  in  charter  reducing  amount  of  stock 177 

SECTION   VI. 

CALLS    MAY    EE    MADE    PAYABLE    BY    INSTALMENTS 177 

SECTION   VIL 

PARTY    LIABLE    FOR    CALLS. 

1.  Subscribers  liable  to  calls 178 

2,6.  What  constitutes  subscription  to  capital  stock 178-180 

3.  How  a  purchaser  of  stock  becomes  liable  to  the  company 179 

4.  One  may  so  conduct  as  to  estop  himself  from  denying  his  liability       .      179,  180 

6.  Register  of  the  company  evidence  of  membership 180 

G.  Subscriptions  must  be  made  in  conformity  to  charter 180 

7.  Transferee  liable  for  calls.     Subscriber  also  in  some  cases       ....      ISO,  181 

8.  Original  books  of  subscription  primary  evidence 181 

9.  Secondary  evidence  admissible  when  original  is  lost 181 

10.  What  acts  will  constitute  one  a  shareholder 181 

11.  May  take  and  negotiate  or  enforce  notes  for  subscriptions 181 

12.  But  note  fraudulently  obtained  not  enforceable Ibl 

lo.  Subscriptions  by  one  as  executor  distinct  from  those  in  private  capacity     .  182 

SECTION   VIII. 

BELEASK    FROM    LIABILITY    FOR  CALLS. 

1,  2.  Where  the  transfer  of  shares,  without  registry,  will  relieve  the  proprietor 

from  calls 182,  183 

3.  Where  shares  are  forfeited,  by  express  condition,  subscriber  no   longer 

liable  for  calls 183 

4.  Dues  cannot  be  enforced  which  accrue  upon  shares  after  they  were  agreed 

to  be  cancelled 183 

SECTION  IX. 

DEFENCES    TO   ACTIONS    FOR    CALLS. 

1.  Informality  in  organization  of  company  insufficient 184,  185 

n.  (a).  Fraud  as  a  defence,  in  general 184 

2.  Slifiht  acquiescence  estops  the  party  in  some  cases 185,  186 

3.  4.  Default  in  first  payment  insufficient 186.  187 

6.  Company  and  subscriber  may  waive  that  condition 187,  188 

6.  Contract  for  stock,  to  be  paid  in  other  stock 189 

7,  8.  Infancy.     Statute  of  limitations  and  bankruptcy 189-191 

9.  One  commissioner  can  give  no  valid  assurance  as  to  the  route 191 

10.  What  representations  matters  of  opinion 191 

SECTION   X. 

FCXDAUENTAL    ALTERATION    OF    CHARTER. 

1.  Such  alteration  releases  subscribers 192,  19.3 

2.  Instance  of  alteration  permitting  purchase  of  steamboats 193 

3.  7.  Majority  may  bind  company  to  alterations  not  fundamental    .     .     .      193,  196 


XXU  ANALYSIS   OF   CONTENTS. 

4.  Directors  cannot  use  tlie  funds  for  purposes  foreign  to  the  organization  .     .     194 

6,  9.  But  legal  alterations  in  the  charter,  or  the  location  of  the  road,  will  not 

release  subscribers 194,  195,  197 

6.  If  subscriptions  are  made  on  condition  of  a  particular  location,  however,  it 

must  be  complied  with 195,  196 

8,  9.  Consideration  of  subscription  being  location  of  road,  must  be  substan- 
tially performed 196,  197 

10.  Express  conditions  must  be  performed 197 

11.  How  far  alterations  may  be  made  witiiout  releasing  subscribers      .     .       198,  199 

12.  May  be  made  where  such  power  is  reserved  in  the  charter 199 

13.  Personal  representative  liable  to  same  extent  as  subscriber 199 

14.  Money  subscriptions  not  released  by  subsequent  ones  in  land 199 

15.  Corporation   cannot  make    calls    in    another    state    even   by   legislative 

permission 199 


SECTION  XL 

SUBSCRIPTIONS   BEFORE    DATE    OF   CHARTER. 

1.  Subscriptions  before  date  of  charter  good 200,  201 

2.  Subscriptions   on  condition   not  performed.      Effect   of  subsequent   per- 

formance      201,202 

3.  Subscription  by  a  stranger  to  induce  company  to  build  station 202 

4.  Subscription  on  condition,  an  offer  merely 202 

5.  Conditional  subscription  takes  effect  on  performance  of  the  condition      .     .    202 

6.  How  far  commissioners  may  annex  conditions  to  subscription    .     .     .      202,  203 

7.  Such  conditions  void,  if  fraudulent  as  to  company 203 


SECTION  XII. 

SUBSCRIPTION    UPON   SPECIAL   TERMS. 

1.  Subscriptions  not  payable  in  money 208,  204 

2.  Subscriptions  at  a  discount,  not  binding 204 

n.  2.  Contracts  to  release  subscriptions  not  binding 204,  205 

3.  4.  Subscriptions   before    and   after  organization.      President  may   accept 

conditional  subscriptions 205 

5.  Subscription  payable  in  labor  not  enforced  in  money  until  opportunity 

given  to  perform 206 

6.  True  rule,  subscription  enforceable  only  according  to  terms,  but  directors 

responsible  to  creditors  for  money 206 

7.  8,  9.  Subscriptions  to  be  paid  in  bonds  at  par  value 206,  207 

10.  Qiuere,  whether  a  corporation  can  stipulate  to  pay  interest  on  stocks  .       207,  208 

11.  Such  a  certificate  of  stock  is  not  thereby  rendered  inoperative  for  legiti- 

mate purposes 208 


SECTION  XIII. 

EQUITABLE   RELIEF    FROM    SUBSCRIPTIONS   OBTAINED   BY   FRAUD. 

1.  Substantial  misrepresentations  in  obtaining  subscriptions  will  avoid  them  .     209 

2.  But  for  misconduct  of  the  directors,  not  amounting  to  fraud,  they  alone  are 

liable 210 

3.  Purchaser  must  make  reasonable  examination  of  papers  referred  to.     No 

relief,  where  there  is  no  fraud,  or  intentional  misrepresentation     .       210,  211 

4.  Directors  cannot  make  profit  for  themselves 211 


ANALYSIS   OF    CONTENTS.  XXiii 

SECTION   XIV. 

FORFEITCRE   OF    SUARES.  —  RELIEF    IN    EQUITY. 

1.  Requirements  of  cliarter  and  statutes  as  to  forfeiture  must  be  strictly  pur- 

sued      211 

2.  Otiierwise  equity  will  set  aside  the  forfeiture 211,212 

n.  (a).  At  suit  of  any  shareholder  ])r()cc'L-iliiif;  by  siiareliolder's  bill      .     .     .     '2\2 
Company  must  credit  the  stock  at  full  luarket  value 212 

4.  I'rovisions  of  English  statutes 212 

6.  Evidence  must  be  express,  tiiat  all  requisite  steps  were  pursued     ....    212 

SECTION  XV. 

RIGUT   OF    CORPORATORS    AND    OTHERS    TO    INSPECT    HOOKS    OF    COMPANY. 

1.  Corporators  or  shareholders  may  inspect  and  take  minutes  from  books    .     .  213 

2.  Discussion  of  the  extent  to  which  such  books  are  evidence    ....      213,  214 

3.  Purposes  for  which  such  books  are  important  as  evidence 214 

4.  Books  within  the  rule.     Books  of  proceedinjjs  of  directors 214 

5.  Party  claiming  to  be  shareholder  may  inspect  register 214 

6.  Whether  inspection  allowed  when  suit  or  proceedings  not  pending      .     .     .  215 

7.  Party  may  have  aid  in  the  inspection 215 


PART  III. 
THE  LAW  OF  RIGHT  OF  WAY,  EMINENT   DOMAIN,  ETC. 

CHAPTER  X. 

RIGHT   OF   WAY    BY   GRANT. 

SECTION    I. 
OBTAINING    LANDS    BY    EXPRESS    CONSENT. 

1.  Kight  to  obtain  under  the  English  Statute 219,220 

2.  Persons  under  disability 220 

3.  n.  2.  Money  to  take  the  place  of  the  land 220,221 

n.  (a).  Persons  of  whom  in  this  country   it  may  be  obtained,  —  equitable 

owners,  husbands,  trespassers,  &c 210,  220 

4.  Consent  to  pass  line  of  another  company 221 

5.  liight  of  com])anie8  acquiring  by  jiurchase  in  this  country 221 

6.  License  to  build  railway.     Construction 221,  222 

7.  Company  bound  by  conditions  in  deeil 222 

8.  Parol  license  good  till  revoked 223,  224 

0.  Sale  of  road  under  mortgage  no  ahantlonmont 224 

10.  Deed  conveys  incident ;  not  expl.iinai)le  by  ])arol 225 

11.  (irantor  cannot  derogate  from  compulsory  grant 225 

12.  But  this  does  not  apply  to  accidental  incidents •_    225 

13.  Decision  somewhat  at  variance  with  the  preceding  cases 225,  220 

14.  A  municipal  corporation  may  be  bound  by  implieil  contract  in  the  grant  of 

lanil  so  as  not  to  l)e  at  liberty  to  recede  from  it 226 

15.  Mere  agreement  to  sell,  although  in  writinsr,  will  not  justify  an  entry  on 

the  laud,  nor  defeat  proceedings  under  the  statute  to  recover  damages 

for  taking  it 227 


XXIV  ANALYSIS   GP   CONTENTS. 

SECTION   II. 

SPECIFIC    PERFORMANCE    IN    EQUITY. 

1.  Contracts  before  and  after  date  of  cliarter 228 

2.  Contracts,  all  tlio  terms  of  which  are  not  defined 228 

3.  Contracts  by  vvhicli  an  umpire  is  to  fix  price 229 

4.  Right  of  mandamus  as  affecting  the  remedy 229 

5.  Contracts  not  signed  by  company 229 

0.  Contracts  of  whicii  terms  are  uncertain 229 

7.  Contracts  giving  tlie  company  an  option 230 

8.  Contracts  not  understood  by  botli  parties 230,  231 

9.  Order  in  regard  to  construction  of  higinvays  may  be  enforced  at  the  suit  of 

the  municipality 231,  232 

10.  Courts  sometimes  decline  to  decree  specific  performance  on  the  ground  of 

public  convenience 232 

11.  Specific  performance  not  decreed  when  contract  vague  and  uncertain,  and 

for  other  reasons 232 

12.  Courts  of  equity  will  not  in  tlie  final  decree  make  the  price  a  charge  on  the 

land,  unless  so  declared  at  first 232 

CHAPTER  XI. 

EMINENT    DOMAIN. 

SECTION    L 
GENERAL   PRINCIPLES. 

1.  Definition  of  the  right 233 

2.  Distinguished  from  the  ordinary  proprietary  right  of  the  sovereign    .     .     .    233 

3.  Necessary  attribute  of  sovereignty 234,235 

4.  Antiquity  of  its  recognition 235 

5.  Limitations  upon  its  exercise 235 

6.  Resides  principally  in  the  states 235 

7.  Duty  of  making  compensation 235,  236 

8.  Right  to  regulate  use  of  navigable  waters 236 

9.  10,  11.  Its  exercise  in  rivers,  above  tide-water 236 

SECTION  XL 

TAKING    LANDS    IN    INVITUM. 

1.  Legislative  grant  requisite  to  compulsory  taking 237,  238 

2.  Compensation  must  be  made 238 

3.  Consequential  damages.     Whether  paid  for 238,  239 

4.  Extent  of  liability  for  consequential  damages 239 

5.  8,  9.  Grants  of  such  powers  strictly  but  reasonably  construed      .     .     .       239-242 

G.  Limitation  of  the  power  to  take  lands       240,  241 

7.  Interference  of  courts  of  equity 241 

10.  Rights  acquired  by  company.     Right  to  enter  without  process 242 

11.  Rights  limited  by  the  grant 242,  243 

12.  Rights  of  municipal  corporation  more  extensive 243 

SECTION   IlL 

CONDITIONS    PRECEDENT. 

1.  Company  must  comply  with  conditions  precedent 244 

2.  Compliance  must  be  alleged  in  petition 244,  245 


ANALYSIS   OF   CONTENTS.  XXV 

3.  Payment  as  a  condition  prcceilent  to  vestinf,'  of  title  in  company     .     .      2J5,  246 

4.  Filing  tiie  location  in  liio  land  olHce  notice  to  Buijsequent  purcliabcrs   ,     .     .     2i(i 

6.  Damatjc's  assessed  and  confirmed  by  the  court,  tlie  owner  is  entitled  to  exe- 

cution   21G 

C.  Company  in  possession,  equity  will  enforce  payment  and  enjoin  use  in  de- 
fault thereof     240,217 

7.  Subscriptions  to  stock  payable  in  land  on  condition  precedent,  condition 

waived  by  conveyance,  &c 217 


SECTION  IV. 

PRELlMINAUy    SURVEYS. 

1.  Preliminary  survey  may  be  made  without  compensation 247 

2.  Compensation  may  be  required  by  statute,  but  company  not  trespasser    247,  248 

3.  Company  may  make  tenijjurary  entry,  in  England,  for  what  purposes      .     .     248 

4.  Company  liable  for  materials 248,  249 

6.  Kijjlit  to  take  materials.     Liability  therefor,  how  ascertained 249 

6,  7.  Liability  of  company  for  entering  before  location 249 


SECTION   V. 

POWER   TO   TAKE    TEMPORARY    POSSESSION    OF    PUBLIC    AND   PRIVATE    WAYS. 

1.  Company  in  England  may  take  possession  of  public  or  private  ways,  in 

building  its  works.     Compensation 250 

2.  Remedy  tor  obstruction  under  the  statutes,  unless  damage  is  special    .     .     .     250 

3.  Person  excavating  highway  in  building  sewer  responsible  only  for  restoration  250 


SECTION  VI. 

LAND   FOR   ORDINARY    AND   EXTRAORDINARY    USES. 

1,  2.  Uses  for  whicli  land  may  be  taken.     Necessary  uses 251-253 

3.  Implied  right  of  company  in  adjoining  state  forming  junction  at  state  line  253,  254 


SECTION   VII. 

TITLE    ACQUIRED    DY    COMPANY. 

1.  7,  8.  Company  acquires  only  right  of  way.     rjight  to  herbage  and  minerals     255, 

258,  259 

2.  Can  take  nothing  from  soil  except  for  construction 255,  260 

3.  Deed  in  fee  may  convey  only  right  of  way,  company  being  incapable  of 

holding  fee 250,  257 

4.  "Whether  company  has  an  estate  subject  to  execution 257,  258 

5.  Whether  company  having  right  to  cross  way  of  another,  bound  to  purchase    258 

0.  Conflicting  rights  in  different  companies 258 

9-11.  Fee  in,  and  right  of  company  to  use,  streets  of  a  city 259-2(51 

12,1-1  Land  reverts  to  the  owner  on  discontiimance  of  public  use 2GI 

14.  True  rule  stated 2G1,  2G2 

15.  Title  of  company  depending  on  conditions,  conditions  must  be  performed     .     2t'>2 
K).  Further  assurance  of  title 2()2 

17.  Condenmation  cannot  be  impeached 2«''2 

18.  Fee  acquired  by  public,  no  reverter  on  discontinuance  of  public  use    .     .     .     2G2 


XXVi  ANALYSIS   OF   CONTENTS. 

SECTION   VIIL 

CORPORATE    FRANCHISES   CONDEMNED. 

1.  Tload  franchise  may  be  taken 263,  2G4 

2.  Compensation  must  be  made 204,  265 

3.  Hailway  franchise  may  he  taken  for  another  company 2G5 

4.  Rule  defined.     Grant  of  land  for  one  public  use  must  yield  to  that  of 

another  more  urgent 266 

5,6.  Constitutional  restrictions.     Obligation  of  charter  contract     .     .     .       260,267 

7.  Inviolable  contract  riglits  not  taken  by  imi)lication 267 

8.  Legislative  discretion,  former  grant  not  exclusive 267 

•J.  Highways  and  railways  compared 267 

10.  Exclusive  character  of  grant  does  not  preclude  exercise  of  the  right  of  emi- 

nent domain 268 

11.  Exclusiveness  of  the  grant,  a  subordinate  franchise 2(38 

12.  Legislature  cannot  create  a  francliise,  above  the  reach  of  eminent  domain  .  268 

13.  Legislature  may  apply  streets  in  city  to  any  public  use ........  269 

14.  Compensation  in  such  cases  to  the  owner  of  the  fee.     Converting  canal  into 

railway 269 

SECTION   IX. 

COMPENSATION:    MODE    OF    ESTIMATING. 

1.  Nature  of  the  general  inquiry 270 

2.  Damage  and  benefits  shared  by  the  public  not  to  be  considered       ...__.    270 

3.  General  rule  for  estimating  compensation 271,  272 

4.  Prospective  as  well  as  present  damages  assessed 273 

5.  In  some  states  value  "in  money"  is  the  measure  of  compensation  .     .       274,275 

6.  7.  Damage  and  benefits  cannot  be  considered  in  such  cases    ....       275,  276 

8.  Under  the  English  statute  consequential  injuries  to  lands  not  taken  com- 

pensated   277 

9.  Compensation  in  view  of  farm  accommodations 277,  278 

10.  Benefits  and  damage,  if  required,  must  be  stated 278,279 

n.  13.  Course  of  the  trial  in  estimating  land  damages 278,  279 

11.  Items  of  damage  not  indispensable  to  be  stated 279 

12.  In  contracts  for  land,  statutory  privileges,  to  be  secured,  must  be  stated    279,  280 

13.  Questions  of  doubt  referred  to  experts 280 

14.  Special  provisions  as  to  crossing  streets  only  permissive 280 

15.  Award  of  farm  accommodations  within  a  certain  time,  time  of  the  essence 

of  the  award 280 

SECTION  X. 

MODE    OF    PROCEDirEE. 

1.  In  general,  legislature  may  prescribe  the  mode 281 

2.  Proceedings  must  be  upon  proper  notice 281,  282 

3.  Formal  exceptions  waived  by  appearance 282 

4.  Unless  they  are  niaile  to  appear  of  record 282,  283 

6.  Proper  parties,  those  in  interest 283 

6.  Title  of  the  claimant  may  be  examined 283,  284 

7.  Parties  who  join  must  show  joint  interest 284 

8.  Jury  may  find  facts  and  refer  title  to  the  court 284 

9.  Land  must  be  described  in  verdict .     285 

n.  (g).  Jury,  in  some  states,  may  view  the  premises 285 

10.  Distinct  finding  on  each  item  of  claim 285 

11.  Different  interests.     Presumption  as  to  finding 285 

12,13.  Evidence  admissible  to  prove  value 286,287 

14.  Opinion  of  witnesses.     Admissibility 287,288 


ANALYSIS   OF   CONTENTS.  XXvii 

15.  Testimony  of  experts.     Admissibility 288,280 

10.  Matters  incapable  of  (lescription 28'J,  2'JO 

17.  Costs.     Allowance,  in  neneral 2'Jl 

18.  Costs  and  e.\]ienst's.     Alcaninf;  of  tlie  term 2'Jl 

ly.  Commissioner's  fees.     Party  liable 2!>1 

20.  Appellant  tailin{^  must  pay  costs 291 

21.  Competency  of  jurors 292 

22.  I'ower  of  court  to  revise  proceedings 292 

23.  Debt  will  not  lie  on  conditional  rejxirt 292,  293 

24.  Excessive  damages  ground  for  setting  aside  verdict 293 

n.  (m).  Matters  of  jurisdiction,  pleading,  practice,  judgment,  appeal,  &c.  29;i-29G 

25.  No  effort  to  agree  required  in  order  to  give  jurisdiction 294,  295 

26.  Interest  on  value  from  time  of  taking 296 

SECTION  XI. 

TIME    OF    MAKING    COMPENSATION. 

1,  2.  Compensation  must  precede  possession 297,  208 

8.  So  by  the  Code  Napoleon 298 

4.  Thus  under  most  of  the  state  constitutions  it  must  be  concurrent  with  the 

taking 208 

5.  Otherwise  by  the  English  cases 299,  300 

G.  Adequate  legal  remedy  sufficient  1 .3(X)-302 

7.  Payment,  wliere  required,  is  requisite  to  vest  the  title 302,  303 

8.  Some  states  hold  that  no  compensation  is  requisite 303 

SECTION  XII. 

APPRAISAL    INCLUDES    CONSEQUENTIAL    DAMAGES. 

1.  Appraisal  bars  claim  for  consequential  damage 304 

2.  Damage,  for  instance,  by  blasting  rock 305 

3.  But  not  damage  by  the  unnecessary  using  of  other  land 306 

4.  Loss  by  fires,  obstruction  of  access,  and  cutting  off  of  springs,  barred        306,  307 

5.  But  not  loss  by  flowing  land 307,  308 

6.  Damages,  from  not  building  on  the  plan  contemplated,  are  barred  ....     308 

7.  Special  statutory  remedies  reach  such  damages 308,  ."lOO 

8.  Pjxposure  of  land  to  fires  not  to  be  considered 309,310 

9.  No  action  lies  for  damage  sustained  by  the  use  of  a  railway  ....      310,  311 


SECTION  XIIL 

ACTION    FOB   CONSEQnENTIAL    DAMAGES. 

1.  Statute  remedy  for  lands  "  injuriously  affected  " 311,312 

2.  Without  statute  an  action  will  not  lie 312 

3.  But  otherwise  for  negligence  in  construction,  or  use 313,  314 

4.  Statute  remedy  exclusive 314 

6.  Minerals  reserved.     Working  of  mine  prevented 314,315 

6.  Damages  for  taking  land  of  railway  for  highway 315 

7.  Compensation  for  minerals,  when  recoverable 316 

SECTION   XIV. 

RIGHT    TO    OCCUPY    IIIGIIWAV. 

1.  Decisions  as  to  tlie  right  of  abutting  owners  to  compensation,  conflicting      ._   310 

2.  First  held  that  owners  of  the  fee  were  entitled  to  additional  damages        317,  318 


XXVIU  ANALYSIS   OP^   CONTENTS. 

3.  Principle  would  seem  to  support  such  a  rule 319-321 

4.  Hut  many  cases  are  the  other  way 321,  322 

i).  lA'gislatures  should  require  additional  compensation 322 

0.  Equity  will  not  enjoin  railways  from  occupying  streets  of  a  city       ....     322 

7.  Such  eomi)ensation  required  in  some  of  the  states 323-325 

b.  Recent  decisions  show  an  inclination  to  require  compensation     .     .     .       32G-330 

n.  (a).  Right  of  the  owner  of  the  fee  to  adtlitional  compensation  would  seem 

to  be  settled 316-319 

SECTION   XV. 

CONFLICTING    RIGHTS    IN    DIFFERENT    COMPANIES. 

1.  Compiny  subservient  toanotlier  can  take  of  the  other  land  enough  only  for 

its  track 331 

2.  Where  no  apparent  conflict  in  route,  company  whose  road  is  first  located 

acquires  superior  right 332 

SECTION   XVI. 

EIGHT   TO    BCILD    OVER    NAVIGABLE    WATERS. 

1.  Legislature  may  grant  right  to  build  over  navigable  waters    ....      332,  .333 

2.  Riparian  proprietor  along  navigable  water  owns  only  to  the  water       .       3.33,  334 
»i.  (a).  But  ^((rrre  if  this  does  not  depend  on  the  local  law 333 

3.  His  rights  in  the  water  subservient  to  public  use 335 

4.  Legislative  grant  valid,  subject  to  paramount  power  of  Congress     ....     835 

5.  State  interest  in  flats  where  tide  ebbs  and  flows 336,  .337 

6.  Riglits  of  littoral  proprietors  in  Massachusetts 337 

7.  Grant  to  railway  company  of  shipping  place  on  navigable  river  .     .     .      337,  338 

8.  Principal  grant  carries  its  incidents 338 

9.  Grant  of  right  to  construct  a  harbor  includes  right  to  make  necessary  erec- 

tions       338 

10,11.  Rivers  in  fact  navigable,  navigable  in  contemplation  of  law  .     .     .      338,339 

12.  Land  being  cut  ofi" from  wharves  deemed  "  injuriously  affected  "     ....     339 

13.  Infringement  of  paramount  rights  of  Congress  creates  a  nuisance    ....     3.39 

15.  Obstruction,  if  illegal,  per  se  a  nuisance 340 

16.  Public  reservations  applied  to  use  of  railway 340 

SECTION   XVIL 

OBSTRUCTION    OF    STREAMS    BY    COMPANY'S    WORKS. 

1.  Company  cannot  divert  stream,  without  making  compensation 341 

2.  Company  liable  for  defective  construction 342 

3.  So  also  for  the  use  of  defective  works  built  by  others 343 

4.  Company  liable  to  action  where  mandamus  will  not  lie 343,  344 

5.  Company  liable  for  defective  works  done  according  to  its  plans       ....  344 

6.  When  a  railwa}- "  cuts  off  "  wharves  from  tlie  navigation 345 

7.  Stream  diverted  must  be  restored  and  maintained 345 

8.  Company  cannot  cast  surface  water  on  adjoining  land  except  from  strict 

necessity 345 

9.  Public  company  exceeding  its  powers  liable  to  an  action 345,  .346 

10.  In  such  cases  equity  will  relieve  by  injunction 346 

SECTION  xvin. 

OBSTRUCTION    OF    PRIVATE    AVAYS. 

1.  Obstruction  of  private  way  question  of  fact  for  a  jury 346,347 

2.  Farm  road  on  one's  own  land,  not  a  private  way 347 

3.  Obstruction  of  right  of  way  by  passage  of  railway  along  street 347 


ANALYSIS   OP   CONTENTS.  Xxix 

SECTION   XIX. 

STATUTE    KEMEOY    EXCLUSIVE. 

1,  7.  Statute  renieily  for  laml  taken,  jjencrally  exclusive  of  any  otlier     .       348,  G51 

2.  But  if  company  <Ioes  not  i>iirsue  statute  it  is  liable  in  trespass  ;  and  for  neg- 

lifjcnce  liable  also  in  action  on  the  case 349 

3,4.  Courts  of  efjuity  often  interfere  by  injunction 850,351 

5.    Hut  right  at  law  must  be  first  cstablisbed 3.jl 

G.  Wiiere  statute  remedy  fails,  common  law  remedy  e.xists 351 

8.  Company  adopting  works  responsible  for  amount  awarded  for  land  damages   352 

SECTION   XX. 

L.\M)S    INJURIOLSLY    AFFICTED. 

1.  Obstruction  of  way,  loss  of  custom 352-354 

2.  Equity  will  not  enjoin  the  e.xercise  of  a  clear  legal  right 354,  355 

3.  Company  liable  for  building  railway,  so  as  to  cut  ofl"  wharf 355 

4.  But  not  for  crossing  highway  near  a  dwelling  on  level 355 

5.  English  statute  only  includes  damages  by  construction  only,  not  by  use   355,  356 

6.  Equity  will  not  enjoin  the  assertion  of  a  doubtful  claim 856 

7.  Damages  unforeseen  at  the  time  of  the  appraisal,  recoverable  in  England       356, 

357 

8.  Injuries  to  ferry  and  towing  path  compensated 357,  358 

9.  10.  Kemote  injuries  nut  within  the  statute 358 

11.  Damages  compensated,  undir  statute  of  Massachusetts 358,  359 

12.  Damages  not  comjiensated,  as  being  too  remote 359 

18.  Negligence  in  construction  remediable  at  common  law 359 

14.  So  of  neglect  to  repair 360 

15.  Recovery  under  the  statute,  &c 360 

IG.  Possession  by  company,  notice  of  extent  of  title 360 

17.  Companies  have  right  to  exclusive  possession  of  roadway 300,  361 


SECTION  XXI. 

DIFFEREXT    ESTATES    PROTECTED. 

1.  Tenant's  good-will  and  chance  of  renewal  protected 301.302 

2.  Tenants  entitled  to  compensation  for  change  of  location 362,  3(!3 

3.  Church  i)ropert}'  in  England,  how  estimated 3ftj 

4.  Tenant  not  entitled  to  sue,  as  owner  of  private  way .363 

5.  Heir  and  not  administrator  shoidd  sue  for  compensation 363 

6.  Lessor  and  lessee  b  )th  entitle<l  to  compensation oti.3 

7.  Right  of  way,  from  necessity,  protected 364 

8.  Mill-owner  entitled  to  action  for  obstructing  water ;^(>4 

9.  Occujiant  of  land  entitled  to  compensation 864 

10.  Tenant,  without  power  of  alienation,  forfeits  his  estate,  by  license  to  com- 

pany      305 

11.  Damages  accrued  not  transferred  by  deed  of  land 365 


SECTION   XXII. 

ARBITRATION. 

1.  Attorney,  without  express  power,  may  refer  disputed  claim   ....      865,  366 

2.  Award  binding,  unless  objected  to  in  court 306 


XXX  ANALYSIS   OP   CONTENTS. 

SECTION  XXIII. 

STATUTE    OF    LIMITATIONS. 

1.  General  limitation  of  actions  applies  to  land  claim 366,  367 

2.  Filing;  petition  will  not  save  bar ^67 

3.  Acquiescence  of  forty  years  by  land-owner,  effect  of 307 

4.  Bar  effectual  where  tiie  use  is  clearly  adverse 308 

CHAPTER  XII. 

REMEDIES   BY   LAND-OWNERS    UNDER   THE    ENGLISH    STATUTE. 

SECTION    I. 
COMPAKT    BOUND    TO    PURCHASE    THE    WHOLE    OF    A    HOUSE,    ETC. 

1.  Company  to  take  tlie  accessories  with  the  house 369,  370 

2.  But  tiie  owner  has  an  election  as  to  whether  the  company  shall  take  the 

whole 370 

3.  Company  bound  to  make  deposit  of  the  appraised  value  of  all  it  is  bound  to 

take 370 

4.  Company  bound  to  take  all  of  which  it  takes  part,  and  pay  special  dam- 

age besides 370,  371 

5.  Company  having  given  notice  of  desire  to  take  part,  not  bound  to  take 

whole  if  it  waives  its  intention 371 

6.  Land  separated  from  house  by  highway  not  part  of  premises      .    .     .     .     .     372 

SECTION  IL 

COMPANY    COMPELLABLE    TO    TAKE    INTERSECTED    LANDS,    AND    OWNER    TO    SELL. 

1.  When  less  than  half  an  acre  remains  on  either  side,  company  must  buy      .    372 

2.  Owner  must  sell  where  land  of  less  value  tiian  railroad  crossing      .     .       372,  873 

3.  4.  Word  "  town,"  how  construed 373 

SECTION  IIL 

EFFECT  OF  NOTICE  TO  TREAT  FOR  THE  PURCHASE  OF  LAND. 

1.  Institution  of  proceedings.     Effect  under  statute  of  limitations 373 

2.  Company  compelled  to  summon  jury 373,  374 

3.  Ejectment  not  maintainable  against  company 374 

4.  Powers  to  purcliase  or  enter,  how  saved 374,  375 

5.  Subsequent  purcliasers  affected  by  notice  to  treat  as  tlie  inception  of  title   .    375 

6.  But  notice  may  be  witlidrawn  before  aiiytliing  is  done  under  it 375 

7.  Not  necessary  to  declare  the  use,  nor  tliat  it  is  for  station  in  use  of  which 

another  company  is  to  participate 375,  376 

SECTION  IV. 

REQUISITES    OF    TIIE    NOTICE    TO    TREAT. 

1.  Notice  to  treat  must,  in  terms  or  by  reference,  accurately  describe  land  .     .     376 

2.  Company  cannot  retract  after  giving  notice  to  treat 376,  377 

3.  New  notices  given  for  additional  lands 377 

4.  Power  to  take  land  not  lost  by  former  imwarranted  attempt 377 

6.  Lands  may  be  taken  for  branch  railway 377,  378 

6.  Effect  of  notice  in  case  of  a  public  park 378 


ANALYSIS   OF   CONTENTS.  XXXi 

SECTION  V. 

NOTICE    MAY    IJi;    WAIVED. 

1.  Notice  must  be  set  forth  in  proceedings 378 

2.  Agreement  to  waive  operates  an  estoppel 378 

8.   Certiorari  denied  where  party  has  sutlered  no  injury 379 

SECTION  VI. 

TITLE   OF   THE   CLAIMANT    MUST   HE    DISTINCTLY   STATED. 

1.  Claimant's  reply  to  notice  should  be  clear  and  accurate 379 

2.  Award  bad,  which  does  not  state  claimant's  interest 379 

3.  Lands  held  by  receiver  or  commission  for  a  lunatic 380 

n.  3.  Analogous  American  cases 380,  381 

SECTION  VII. 

CLAIM   OF   LANDOWNER  MUST   CORRESPOND   WITH    NOTICE 381 

CHAPTER  XIII. 

ENTRY   ON   LANDS   BEFORE   COMPF.NS.\TION   13   ASSESSED. 
SECTION   I. 

LANDS   TAKEN   OR    INJURIOUSLY    AFFECTED,    WITHOUT    PREVIOUS   COMPENSATION   TO 

PARTIES. 

1.  Under  Enjjlish  statutes  no  entry  without  previous  compensation,  except 

for  preliminary  survey 382 

2.  Remedies  against  company  offending 382-384 

3.  Taking  possession  under  statute,  what  acts  constitute 384 

4.  Companv*  may  enter  with  land-owner's  consent  after  agreement  for  arbitr.v 

tion    . f^,i^^ 

5.  Or  on  giving  a  bond  conditioned  for  payment  or  deposit  of  value  of  land  385,  ■■>86 

6.  Company  restrained  from  using  land  until  price  paid 380 

SECTION  n. 

PROCEEDINGS  REQUISITE  TO  ENAULE  COMPANY  TO  ENTER 

1.  Provisional  valuation  imder  English  statutes 386,  387 

2.  Irregularities  in  proceedings i>87 

3.  Penalty  for  irregular  entry  upon  larnls 387 

4.  Kntrv  after  verdict  estimating  damages,  but  before  judgment 387 

5.  Charter  mode  of  assessing  damages  not  superseded  by  subsequent  general 

act 388 


XXXll  ANALYSIS   OP   CONTENTS. 

SECTION   III. 

MODE   OF   OBTAINING    COMPENSATION    WHEKE   NO   COMPENSATION    IS   OFFERED. 

1.  Claimant  may  have  an  assessment  by  arbitrators  or  l)y  jury 388 

2.  Metliod  of  procedure  in  eitlicr  case 388 

SECTION  IV. 

ONUS  OF  CARRYING  FORWARD  PROCEEDINGS. 

1.  Onus  rests  on  claimant  after  company  bas  taken  possession 389 

2.  Tending  questions  in  equity  first  disposed  of.     Notice  of  warrant  for  jury     389, 

800 

3.  Proceedings  cannot  be  had  unless  actual  possession  is  taken  or  injury  done     390 

SECTION    V. 

INJUNCTION    WILL    NOT    ISSUE    BECAUSE   LANDS    ARE   BEING    INJURIOUSLY   AFFECTED, 
WITHOUT    NOTICE    TO    TREAT    OR    PREVIOUS    COMPENSATION. 

1.  Company  proceeding  under  its  powers,  claimant  must  wait  until  works  are 

comjileted 390 

2.  Even  if  appearance  of  land  will  be  greatly  altered 390,391 

3.  How  far  equity  interferes  wliere  legal  claim  of  party  is  denied 391 

4.  Where  a  special  mode  of  compensation  has  been  agreed  on 391 

SECTION   VI. 

KIGHT    IN    THE    CLAIMANT    NOT    DETERMINED    BY    JURY    OR    ARBITRATOR. 

1-3.  Arbitrators  and  sheriff's  jury  determine  onlj'  the  amount  of  damages   391-393 

4.  In  most  American  states  assessment  is  final 393 

5.  riaintiff  will  recover  damages  assessed  if  he  suffered  any  legal  injury    .     .     393 

SECTION  VII. 

EXTENT   OF   COMPENS.\.TION    TO   LAND-OWNERS,    AND   OTHER   INCIDENTS   BY   THE 
ENGLISH    STATUTES. 

1.  Liberal  compensation  allowed 393,  394 

2.  Decisions  under  Englisli  statutes 394 

3.  Limit  of  period  for  estimating  damages 394 

4.  Wlietiier  claim  for  damages  ])asses  to  tlie  devisee  or  executor 395 

5.  Vendor  generally  entitled  to  damages  accruing  during  his  time      ....    395 

SECTION   VIII. 

RIGHT    TO   TEMPORARY    USE   OF    LAND   TO   ENABLE    THE   COMPANY   TO   MAKE    EREC- 
TIONS   ON    OTHER    LANDS. 

1.  Right  to  cross  another  railwa\'  by  a  bridge  gives  right  to  temporary  use  of 

the  company's  land,  but  not  to  build  abutments 395,390 

2.  Right  to  bridge  a  canal  gives  right  to  build  a  temporary  bridge       ....     390 

3.  And  if  erected  tonayzde  it  may  be  used  for  other  purposes 396 


ANALYSIS    OF    CONTENTS.  XXXIU 


SKCTION   IX. 

RESEBVATIONS    TO     LANDOWNERS    TO    UL'ILU     I'UIVATI;     ItAILWAY     ACROSS     PUB- 
LIC   RAILWAY 3'JG,  397 


SECTION  X. 

DISPOSITION    OF    SUI'EUFLUOUS    LANDS. 

1.  Under  Englisli  st.itute  superfluous  lands  vest  in  adjoining  owner  unless  dis- 

posed of  in  ten  years 307 

2.  Former  owner  not  excluded  ;  effect  of  cottage  in  field 397 


CIJ AFTER   XIV. 

MODF.    OF    ASSF.SSING    COMrEXSATIOX    UN'DEU    THE    F-XGLISH    STATUTES. 

SECTION   I. 

ASSESSMENT    BY    JUSTICES    OF   THE    PEACE. 

1.  Assessment  wliere  tlie  compensation  claimed  does  not  e.xceed  £50     .     .     .     398 

2.  Procedure  in  enforcement  of  award 308 

3.  Value  of  land  and  injury  accruing  from  severance  to  be  considered    .     .     .     3y8 

SECTION   II. 

ASSESSMENT    BY    SURVEYORS 398,  399 

SECTION   III. 

ASSESSMENT     BY     ARBITRATORS. 

1.  Assessment  by  arbitrators  in  cases  exceeding  jurisdiction  of  justices  of  the 

peace 399 

2.  Proceedings  in  selection  of  arbitrators -lOO 

3.  Notice  of  appointment.     Wliat  siitticient 4(X) 

4.  Arbitrator's  jiower  limited  to  award  of  pecuniary  compensation      ....  400 

5.  Where  land-owntr  gives  no  notice  of  claim,  company  may  treat  it  as  case 

of  disputed  comjiensation 401 

6.  Similar  rule  under  .^la^sacilu.-ctts  statute  regarding  alteration  of  highways      401 

7.  Under  that  statute  landowners  may  recover  without  waiting  for  selectmen 

to  act 401 

8.  Company  estopped  in  such  case  from  denying  tliat  road  was  constructed 

by  its  servants 401 

9.  Finality  of  award  silent  as  to  severance  damages 401,  402 

10.  Submission  not  revoked  by  death  of  land  owner.     Damages  embraced  .     .     402 

11.  Construction  of  general  award 402 

VOL.  I.  —  c 


XXXIV  ANALYSIS   OF   CONTENTS. 


PART   IV. 

THE  LAW  OF  CONTRACTS  AS  APPLIED  TO  THE  CON- 
STRUCTION OF  RAILWAYS  AND  TELEGRAPHS; 
TOLLS,  ETC. 

CHAPTER  XV. 

CONSTRUCTIOX   OF   RAILWAYS. 

SECTION    I. 
LINE    OF    RAILWAY.  —  RIGHT    OF    DEVIATION. 

1,  2.  Manner  of  defining  tlie  route  in  Eni;Iisli  cliarters 405,  40G 

.3.  Plans  bimling  only  for  the  purpose  referred  to  in  tlie  act 40G 

4.  Contractor  bound  by  contract  notwithstanding  deviation,  unless  lie  object  .     407 
6.  Equity  will  not  enforce  contract  for  crossing  on  level,  not  authorized  by 

act.     Against  public  security 407 

6.  Right  to  construct  accessory  works 407,  408 

7,  8.  Companj'  ma}'  take  lands  designated,  in  its  discretion 408,  409 

9.  Equity  cannot  enforce  contract  not  incorporated  in  the  act 409 

10.  Right  of  deviation  lost  by  location 409,  410 

11.  Railway  between  two  towns,  extent  of  grant 410 

12.  Grant  of  right  to  take  land  for  railway  includes  right  to  take  for  accessories     410 

13.  Route  designated  need  not  be  followed  precisely 411 

14.  Terminus,  being  the  boundary  of  a  town,  is  not  extended  as  the  boundary 

extends 411 

15.  Land-owner  accepting  cotnpensation  waives  informality 411,  412 

16.  Powers  limited  in  time  expire  with  limitation 412 

17.  Construction  of  charter  .-IS  to  extent  of  route 412 

18.  Map  may  be  made  to  yield  to  other  grounds  of  construction 412 

19.  Power  to  change  location  must  be  exercised  before  construction      .     .      412,  413 

20.  Binding  force  of  plans  made  part  of  ciiarter 413 

21.  Grant  terminating  at  town  liberally  construed 413 

SECTION  n. 

DISTANCE,    HOW    MEASURED. 

1.  Measurement  of  distance  is  affected  by  subject-matter 413,414 

2.  Contracts  to  build  railway,  by  rate  per  mile 414 

3.  General  ruU'  to  measure  by  straight  line 414 

4.  Rule  the  same  in  measuring  turnpike  roads 414,  415 

5.  Rate  fixed  by  mile  means  full  mile;  no  charge  for  fractions 415 


SECTION   III. 

MODE    OF    CONSTRUCTION  ;    COMPANY    TO    DO    LEAST    POSSIBLE    DAMAGE. 

1.  Rule  under  English  statute  does  not  extend  to  form  of  road,  but  to  mode  of 

construction 415 

2.  Special  provisions  of  act  not  controlled  by  this  general  one 415 

3.  Works  interfered  with,  to  be  restored,  for  all  uses 415,  41G 


ANALYSIS   OF   CONTENTS.  XXXV 

SECTION   IV. 

UODB    OF   CROSSING    IIIQUWAYS. 

1.  English  statutes  forbid  crossings  at  grade 410 

2.  Or  otiierwise  provide  that  gates  be  erected  and  tended 417 

'6.  And   if  near  a  station,  that  trains  shall  not  run  faster  than  four  miles  an 

lioiir 417 

4.  Coni[)uny  cannot  alter  course  of  higliway 417 

6.  Kiglit  to  use  liighway  gives  no  right  to  appropriate  military  road  .     .       417,  41H 
U.  Mandamus  docs  not  lie  to  compel  particular  form  of  crossing  wliere  com- 
pany lias  an  election 418 

7.  Company  camiot  alter  highway  to  avoid  building  bridge 418 

8.  Kxtent  of  repair  of  bridge  over  railway 418,  41'J 

9.  I'ermission  to  connect  hranches  with  main  line  not  revocable     .     .     .       41'J,  4li0 

10.  Grant  of  right  to  build  railways  across  main  line  implies  right  to  use  them 

as  common  carriers 420 

11.  Company  liable  for  dangerous  state  of  highway  caused  by  works  ....     420 

12.  Kight  to  lay  line  across  railway  carries  right  to  lay  as  many  tracks  as  are 

convenient  for  the  business 4'20 

13.  Damages  for  laying  higliway  across  railway 420 

14.  Laying  higliway  across  railway  at  grade.     Company  not  estoi)pcd  by  con- 

tract witii  former  owner  of  land 420,  421 

15.  Towns  not  at  liberty  to  interfere  with  railway  structures 421 

SECTION   V. 

RIGHTS    OF    TELEGRAPH    COMPANIES. 

1.  Right  to  "  pass  directly  across  a  railway,"  does  not  justify  boring  under  it  .     421 

2.  Exposition  of  the  terms  "  under  "  and  "  across  " 422 

3.  Erecting  posts  in  highway  a  nuisance  even  if  sufficient  space  remain  .     .     .    422 

SECTION   VL 

DUTY    OF    COMPANY    IN    REGARD   TO    SUBSTITUTED   WORKS. 

1.  Company  bound  to  repair  bridge  substituted  for  ford,  or  to  carry  liighway 

over  railway 423 

2.  Same  rule  has  been  applied  to  drains,  substituted  for  others 42."1 

3.  Extent  of  this  duty  as  applied  to  bridge  and  approaches 423,424 


SECTION   YIL 

CONSTRUCTION  OF  CHARTER  IN  RI.GAUI)  TO  NATfUE  OF  WORKS,  AND  MODE 

OF  CONSTRUCTION 424 


SECTION   VIII. 

TERMS  OF  CONTRACT.  —  MONET  PENALTIES.  —  EXCUSE  FOR  NON-PERFORMANCE. 

1.  Contracts  for  construction  may  assume  forms  unusual  in  other  contracts    .    425 

2.  Qu;intity  and  quality  of  work  generally  referred  to  engineer 42»i 

3.  Money  penalties,  li(|uidated  damages.     Full  performance  of  waiver    .       426,427 

4.  Excuses  for  non-performance.     Injunction.     New  contract 427 

5.  Penalty  not  incurred,  unless  upon  strictest  construction 427 

6,7.  Contractor  not  entitled  to  anything  for  part-performance    ....       427,428 
8.  Contract  for  additional  compensation  must  be  strictly  performed    ....     428 


XXXVl  ANALYSIS   OF   CONTENTS. 

SECTION   IX. 

FORM    OF   EXECUTIOX.  —  EXTRA    WORK.  —  DEVIATIONS. 

1.  Contract  need  be  in  no  particular  form 428,  429 

2.  But  tlie  express  requirenients  of  the  clmrter  must  be  complied  with    .     .     .     429 

3.  Company  not  liable  for  extra  work  unless  it  was  done  on  the  terms  speci- 

lied  in  contract 430,  431 

4.  Sed  qucere,  if  the  company  has  had  the  benefit  of  the  work 431 

SECTION   X. 

REPUDIATION    OF    CONTRACT. OTHER    PARTY     MAT    SUE    IMMEDIATELY. 

INEVITABLE    ACCIDENT. 

1.  Repudiation  by  one  party  excuses  performance  by  the  other      .     .     .      431,  432 

2.  But  he  may  stipulate  for  performance  on  different  terms 432 

3.  President  cannot  bind  the  company  for  additional  compensation     ....     432 

4.  Effect  of  inevitable  accident 432,  433 

SECTION  XI. 

DECISIONS    OF    REFEREES    AND    ARBITRATORS    IN    REGARD    TO    CONSTRUCTION 

CONTRACTS. 

1.  Award  valid  if  substantially,  tliough  not  technically  correct 433 

2.  Court  will  not  set  aside  award,  where  it  does  substantial  justice      ....     434 

SECTION  XII. 

DECISIONS    OF    company's    ENGINEERS. 

1.  Estimates  for  advances,  mere  approximations,  under  English  practice      434,  435 

2.  But  where  the  engineer's  estimates  are  final,  can  only  be  set  aside  for 

partiality  or  mistake 435,  436 

3.  Contractor  bound  by  practical  construction  of  the  contract 436 

4.  Estimates  do  not  conclude  matters  not  referred 436,  437 

5.  Contractor  bound  by  consent  to  accept  pay  in  depreciated  orders  ....     437 

6.  Right  of  appeal  lost  by  acquiescence 437 

7.  Engineer  cannot  delegate  his  authority  under  reference 437 

8.  Arbitrator  must  notify  parties,  and  act  iwiay!"(/e 438 

SECTION  XIII. 

RELIEF   IN    EQUITY    FROM   DECISIONS   OF   COMPANY'S   ENGINEERS. 

1.  Contract  referring  work  to  engineer,  engineer  to  be  satisfied  .     .     .     .      438—441 

2.  Bill  for  relief  praying  that  plaintiff  be  pcrmitteil  to  go  on,  &c 441 

3.  Bill  sustained.     Amendment  alleging  mistake  in  estimates 441 

4.  Relief  as  to  sufficiency  of  payments  had  only  in  equity 441 

5.  Proof  of  fraud  must  be  very  clear 441 

6.  Engineer  a  shareholder,  not  valid  objection 441 

7.  Decision  'of  engineer  conclusive  as  to   quality   of   work,  but  not  as   to 

quantity 441 

8.  New  contract  condonation  of  old  claims 441,442 

9.  Account  ordered  after  cf)inpany  had  completed  work 442 

10.  Money  penalties  cannot  be  relieved  against,  unless  for  fraud 442 


ANALYSIS    OF    CONTENTS.  XXXvii 

11.  Etifrineor's  estimates  not  conclusive,  unless  so  agreed 4-12 

12.  Contractor  eiUitlud  to  full  compensation  for  work  accepted  by  supplemental 

contract 442 

13.  Direction  of  umpire  binding  on   contracting  parties,  and  dispenses  with 

certificate  of  full  performance 442,  443 

SECTION   XIV. 

FRAUDS  IN'  CONTRACTS  FOR  CONSTRUCTION. 

1.  Relievable  in  equity  on  {general  principles 44,3 

2.  Statement  of  leadiii;^  cases  upon  this  subject 4  |.S 

3.  No  definite  contract  closed,  uo  relief  granted 443,444 

SECTION   XV. 

ENGINKtCIl's    ESTIMATE    WANTING    THROUGH    FAULT    OF    COMPANY. 

1.  Kelief  in  equity  where  estimate  of  engineer  is  wanting  through  fault  of 

company 444 

2.  Grounils  <tf  equitable  interference 444,  445 

3.  Contract  teiininated,  other  jtarty  enjoined  from  interference       .     .     .      445,  446 

4.  Stipulation  requiring  engineer's  estimate,  not  void 446 

6.  Not    the    same   as   an  agreement  that   all  disputes  shall   be   decided   by 

arbitration 447 

6.  Engineer's  estimate  proper  condition  precedent 447 

7.  Same  as  sale  of  goods  at  the  valuation  of  third  party 447 

8.  Result  of  all  tiie  Knglisli  cases,  that  the  question  of  damages  only  properly 

referable  to  the  engineer 448 

9.  Rule  in  this  respect  dillijrent  in  this  country 448 


SECTION   XVI. 

CONTRACTS    FOR    MATERIALS    AND     MACHINERY. 

1.  Manufacturer  of  machinery,  &c.,  not  liable  for  latent  defect  in  materials      .     449 

2.  Contract  for  railway  sleepers,  terms  stated 449,  450 

3.  Construction  of  such  contract 450 

4.  Party  may  waive  stipulation  in  contract  by  acquiescence 450 

6.  Company  liable  for  materials  accepted  and  used 451 

SECTION   XVII. 

CONTRACT    TO    PAY    IN    THE    STOCK    OF    THE    COMPANY. 

1.  Breach  of  such  contract  generally  entitles  the  partj-  to  recover  the  nominal 

value  of  stock 451 

2.  But  if  the  party  have  not  strictly  performed,  ho  can  recover  only  market 

value 452 

8.  Cash  portion  overpaid  will  only  reduce  stock  portion  dollar  for  dollar     .     .    452 
n.  2.  Lawful  incun^brance  on  company's  property  will  not  excuse  contrac- 
tor from  accepting  stock 452,  453 

SECTION  XVIIL 

TIME    AND    MODE    OF    PAYMENT. 

1.  No  time  specified,  payment  due  only  when  work  completed 4.W 

2.  Stock  payments  must  ordinarily  be  demanded 453.  454 

3.  But  if  company  pay  monthly,  such  usage  qualifies  contract 4."'t 

4.  Contract  to  build  wall  by  cubic  yard,  implies  measurement  in  the  wall   .     .     454 


XXXviii  ANALYSIS   OP   CONTENTS. 

SECTION  XIX. 

REMEDY    ON    CONTRACTS    FOR    RAILWAY    CON3TEUCTION. 

1.  Recovery  on  general  counts 454 

2.  Amount  and  proof  governed  by  contract 454,  455 

SECTION   XX. 

mechanic's  lien. 

1,  2.  Such  lien  cannot  exist  in  regard  to  a  railway 455,  456 

n.  (a).  Matter  now  generally  regulated  by  statutes  giving  liens     .     .      455,456 

SECTION  XXI. 

REMEDIES    ON    BEHALF   OF    LABORERS    AND    SUBCONTRACTORS. 

1.  Sub-contractors  not  bound  by  stipulations  of  contractor 450,457 

2.  Laborers  on  public  works  have  a  claim  against  the  company 457 

3.  But  a  sub-contractor  cannot  maintain  an  action  against  the  proprietor  of  the 

works,  though  his  employe's  may 457 

SECTION  XXII. 

CONDITIONS    IN   CHARTER   AND    ELECTION. 

1.  Such  conditions  must  be  performed,  waived,  or  extended 457,458 

2.  Company  bound  by  its  election 458 

CHAPTER  XVI. 

EXCESSIVE    TOLLS,    FAKE,    AND    FREIGHT. 

1.  English  companies  sometimes  created  for  maintaining  road  only    ....    459 

2.  Where  excessive  tolls  taken  may  be  recovered  back 450,  460 

3.  So  also  may  excessive  fare  aricl  freight 460 

4.  Under  English  statute,  packed  parcels  must  be  rated  in  mass 4(i0 

5.  Nature  of  railway  traffic  requires  unity  of  management  and  control    .     .     .     460 

6.  Tolls  on  railways  almost  unknown  in  this  country.     Fare  and  freight  often 

limited 461 

7.  Guaranty  of  certain  profit  on  investment  lawful 461 

8.  Restriction  of  freight  to  certain  rate  per  ton  extends  to  whole  line      .     .     .  461 

9.  Company,  in  suing  for  tolls  due,  nei'd  not  describe  them  as  such     ....  461 

10.  MoJc  of  establishing  tariff  rates,  and  requisite  proof 461 

11.  Provision  in  a  charter  for  payment  of  a  certain  tonnage  to  the  state  only  a 

mode  of  taxation 461,  462 

12.  Where  a  company  is  allowed  to  take  tolls  on  sections  of  its  road,  each  sec- 

tion is  a  ilistinct  work 462 

13.  14.  Discussion  of  cases  in  New  York  in  regard  to  the  difference  between 

fares  taken  in  the  cars  and  fares  taken  at  the  stations       ....      402,  403 
15.  Fares  fixed  by  statute  are  payable  in  legal  tender  notes 463 


ANALYSIS   OF   CONTENTS.  XXXix 


I'AKT   V. 


THE  LAW   OF   LIABILITY    FOR   FIRES;     INJURIES   TO 
DOMESTIC   ANIMALS;    FENCES. 

CHAPTER    XVII. 

LIABILITY    FOU    TIKES    CUMM  LNICA  TED    BY    COMPANY'S    ENGINES. 

1,  .3.  Fact  tliat  fires  arc  comiminicateil  evidence  of  negligence     ....       407-4^9 

2.  Tliis  was  at  one  time  questioned  in  England 4()8 

4.  Knglish  conipanics  feel  bound  to  use  precautions  against  fire      .     .     .       409,  470 

5.  liule  of  evidence,  in  tliis  country,  more  favorable  to  companies       .     .      470,  471 
G.  But  the  company  is  liable  for  damage  by  fire  caused  by  want  of  care  on 

its  part 471 

7.  One  is  not  precluded  from  recovery,  by  placing  buildings  in  an  exposed  sit- 

uation         472-475 

8.  Where  insurer  pays  damages  on  insured  property,  he  may  have  action 

against  com[)any 475 

9.  Where  company  made  liable  for  injury  to  all  property,  it  is  allowed  to  in- 

sure       475,  47G 

10.  Construction  of  statutes  making  companies  liable  for  loss  Ly  fires  ....     47(5 

11.  Extent  of  resi)Oi)sit)ility  of  insurer  of  goods,  to  company 470,477 

12.  Construction  of  statute  as  to  engines  which  do  not  consume  smoke      .     .     .     477 

13.  Construction  of  Massachusetts  statute  and  niode  of  trial 477,478 

14.  15.  For  what  acts  railway  companies  may  become  responsible  without  any 

actual  negligence 478 

16,  17.  Companies,  when  responsible  for  fires  resulting  from  other  fires  caused 

by  them.     Late  cases  not  sound 478-482 


CIIArTER    XVIII. 

INJURIES    TO    DOMESTIC   ANIMALS. 

1,  2.  Company  not  liable  unless  bound  to  keep  the  animals  off  the  track       48.3-486 
n.  (a).  Liability  of  lessor  and  lessee.     Regulation  by  statute  ....      484,  485 

3.  Company  not  liable  where  the  aiu'mals  were  wrongfully  abroad 486 

4.  Not  liable  for  injury  to  animals,  on  land  where  not  bound  to  fence       .     .     .     487 

5.  Where  comi)any  bound  to  fence,  jntma  fmic  liable  for  injury  to  cattle      .     .     487 
G.   Rut  if  owner  is  in  fault,  company  not  liable 488 

7.  In  sucli  case  company  liable  only  for  gross  neglect  or  wilful  injury    .       488,  489 

8.  Owner  cannot  recover,  if  he  suH'er  liis  cattle  to  go  at  large  near  ii  railway       48i>, 

490 

9.  Company  not  liable   in  such  case,  unless  they   might  have  avoided   the 

injury 4'.«O-402 

n.  (g).   Hate  of  speed  considered  as  negligence /irr  sr 4'.K),  491 

10.  Comnanv  required  to  keep  gates  closed,  liable  to  anv  party  injured  by 

omisV.on       . 492.40.3 

11.  Independently  of  statute,  company  not  bomul  to  fence 494,495 

12,17.  Not  liable  for  consequences  of  the  proper  use  of  its  engines  .     .     .      495,498 

13.  Questions  of  negligence  ordinarily  to  be  determined  by  jury 496 

H.  (i).   Questions  of  contributory  ncgligeni'e,  what  constitutes 490 

14.  But  only  where  the  testimony  leaves  the  question  doubtful 497 

15.  Actions  may  be  maintained  sometimes,  for  remote  consequences  of  negli- 

gence ." 497 


xl  ANALYSIS   OF   CONTENTS. 

16-18.  Especially  where  a  statutory  duty  is  neglected  by  company  .     .     .      497,  498 

19.  Question  of  iK'fjliyonce  is  one  for  the  jury 4U8 

21).  (tiic  wlio  sulTors  an  animal  to  fro  at  larire  can  recover  only  for  gross  neglect  499 
'21.  Testimony  of  experts  receivable  as  to  managi^mont  of  engines  .  .  .  .  .  499 
22    One  who  "suffers  cattle  to  «,'()  at  large  must  take  the  risk 499,  500 

23.  Com[)any  owes  a  primary  duty  to  j>assengcrs,  &c 500 

24.  In  .Maryland  company  liable  unless  for  unavoidable  accident 501 

2-j.  In  Indiana  (;()ininon-law  rule  prevails 5Ul 

2G.  In  Missouri  rule  modified  by  statute 501,  502 

27.  In  California  cattle  may  lawfully  be  sufTered  to  go  at  large 502 

28,  29.  Various  decisions  in  Illinois 502-504 

80.   VVeiglit  of  evidence  and  of  presumption 504 

;>1.  Company  not  liable  except  for  negligence 504 

;>2.  Company  must  use  all  statutory  an(l  other  precautions 504,  505 

38.  Not  coinjietcnt  to  prove  negligence  of  the  same  kind  on  other  occasions  .  505 
34.  Rule  of  damages  in  general,  value  of  animal,  &c 605 


CHAPTER  XIX. 

FENCF.S. 

SECTION  I. 

OBLIG.\.TION    TO    M.\INT.\IN;    RESTS    ON    WHOM. 

1.  Englisli  statute  makes  a  separate  provision  for  fencing 507 

2.  Enforced  against  the  companies  by  mandamus 507 

3.  Where  no  such  provision  exists,  the  expense  of  fencing  is  part  of  the  land 

damages 507-510 

rt.  (a).  Kegulated  by  statutes  in  some  of  the  states.    Various  provisions  507-509 

4.  Where  the  company  resists  the  assessment,  the  land-owner  is  in  the  mean- 

time not  obliged  to  fence 510 

5.  In  some  cases  held  that  the  duty  of  fencing  rests  equally  on  the  company 

and  the  land-owner 511,512 

6.  Assessment  of  land-damages,  on  condition  that  company  build  fences,  raises 

an  implied  duty  on  part  of  company 513,514 

7.  In  some  states,  owners  of  cattle  not  required  to  confine  them  on  their  own 

land 514 

8.  Lessee  of  railway  bound  to  keep  up  fences  and  farm  accommodations     .     .     514 

9.  Company  bound  to  fence  laml  acquired  by  grant,  as  well  as  by  proceedings 

in  inrituin 515 

10.  Farm  crossings  required  wherever  necessary 515 

11.  Land-owner  declining  farm  acconnnodations,  has  no   redress  ;   courts   of 

equity  will  not  decree  specific  performance 515,  516 

12.  Fences  and  farm  acconnnodations  not  required  for  safety  of  servants  and 

employes 516 

13.  TJequisite  proof  where  company  liable  for  all  cattle  killed 517 

14.  Party  bound  to  fence  assumes  primary  responsibility 517 

15.  Company  not  liable  for  injury  at  road-crossings 518 

16.  Company  not  liable  for  injury  to  cattle  by  defect  of  fence  about  yard     .     .  518 

17.  Animals  escaping  through  defecit  of  fence 618 

18.  Injury  must  appear  to  have  occurred  through  default  of  company      .      518,  519 

19.  Cattle-guards  required  in  villages,  but  not  so  as  to  render  streets  unsafe  .     .  519 

20.  Company  responsible  for  injuries  through  defect  of  fences  and  cattle-guards  519, 

520 

21.  Common-law  rule  as  to  liability  maintained  in  New  Hampshire     .     .       520,  521 

22.  Company  responsible  as  long  as  it  controls  road 521 

23.  Maintaining  fences,  matter  of  police.     Duty  under  the  English  statute  and 

at  common  law.     Fencing  against  chihlren 521,  522 

24.  Rule  as  to  land-owner  agreeing  to  maintain  fence,  &c 522 

25.  Company  not  responsible  for  defect  of  fence  where  fence  is  not  needed     522,  523 


ANALYSIS   OF   CONTENTS.  xli 

26.  Company  not  responsible  in  Indiana  imlcs<?  in  fault S23 

"21.  Company  not  lial)lL'  wlierc  Icncu  thrown  down  by  others 523 

28.  Owner  in  fault  cannot  recover  unless  company  failed  to  exercise  ordinary 

care £.23,  524 

21).  llulo  of  damajics  for  not  btiildinfc  fence,  &c 524 

30.    Laiid-Dwner  mu.st  keeji  up  hars >     524 

JJl.  Illustrations  of  the  titiicral  rule 524,525 

32.  Actions  umUr  statute  must  Ijc  brought  within  it 525 

38.  Owner  in  Pennsylvania  must  keep  his  cattle  at  home 525 

34.   Statutory  fence  required 525 


SECTION  II. 

C.\TTLE    AGAINST    WHICH    Tllli    COMfANY    IS    BOLSD    TO    FENCE. 

1.  Owner  bound  to  restrain  cattle  at  common  law 526 

2.  If  bound  to  fence  along  adjoining  lanii,  only  against  cattle  rightfully  on 

such  land 527 

3.  Agreement  that  land-owner  shall  fence,  will  excuse  injury  to  cattle  .     .     .     528 

4.  5.  Owner  of  c.ittle  injured  by  negligence  of  company  may  recover,  unless 

guilty  (irexi)ress  neglect 528-530 

C,  7.  Duty  of  conii)any  to  fence  against  cattle  straying  on  adjoining  land  530,  531 
8.  Company  not  bound  to  fence,  liable  only  for  injuries  caused  by  wanton  or 

reckkss  conduct 531 

'  9.  Grantee  of  land  bound  by  grantor's  covenants  as  to  fencing  ....      631,  532 

10.  Cattle  accidentally  at  large.     Dut}' of  comi)any 532 

11.  Distinction  between  suffering  cattle  tu  go  at  large  and  accidental  escape  5^2,  533 


PART   VI. 
THE   LAW   OF   AGENCY   AS   AlTLIEl)   TO   RAILWAYS. 

CIIAriER  XX. 

LIAHILITIKS    IX    UEGAUD    TO    COXTK.VCTOUS,    AGENTS,    AND    SUB-AGENTS. 

SECTION  I. 

LIAniMTY    FOn    ACTS    AND    OMISSIONS    OF    CONTRACTORS    ANr>    TIIF.IK    AGENTS. 

1.  Company  ordinarily  not  liable  for  an  act  of  the  contractor  or  bis  servant    5.".7, 

5:;8 

2.  Otherwise  in  England  if  the  contractor  is  employed  to  do  the  very  act  .     .     538 

3.  American  courts  seem  disjiosed  to  adojit  the  same  rule 539 

4.  Distinction  lietwt'en  cases  of  acts  done  on  movable  and  cases  of  acts  done 

on  immovable  property  not  maintainable 539,  540 

6.  True  grounds  of  distinction.     What  thcv  are 510 

6.  Mode  of  emplovment,  whether  by  day  or  job,  no  proper  ground  of  distinc- 

tion     .     .  ' ■ 540 

7.  I'roper  basis  of  company's  liability.     Question  of  control -''lO 

8.  Thus,  in  general,  so  long  as  one  retains  control,  be  is  responsible   ....  oil 
n.  (b).  Contractor  in  control,   however,  not  liable  fur  result  of  defects  in 

machinery  furnished  by  I'ompany 511 

9.  Master  workman  responsible  only  for  the  faithfulness  and  care  of  his  work- 

men, in  the  business  of  their  employment    511 


xlii  ANALYSIS    OF   CONTENTS. 

10.  Company  rcsponsihle  for  injuries  consequent  upon  defects  of  construction, 

in  liio  course  of  the  worlt  by  a  contractor 542 

11.  Ordinarily  employer  not  responsible  lor  tlie  negligent  mode  in  wliicli  work 

is  done,  tlie  contractor  being  employed  to  do  it  in  a  lawful  and  reason- 
able manner 542 


SECTION   II. 

LIABILITY    OF    THE    COMPANY    FOK    ACTS    OF    THEIR    AGENTS    AND    SERVANTS. 

1.  Courts  manifest  disposition  to  give  such  agents  a  liberal  discretion     .     .     .  542 

2.  Company  liable  for  torts  committed  by  agents  in  discharge  of  their  duties  543 

3.  May  be  liable  for  wilful  act  of  servant  within  tlie  range  of  his  employment  544 

4.  Assent  of  the  company,  whellier  it  is  necessary  to  show  it 544 

5.  Most  of  the  cases  adiiere  to  the  principle  of  )c.s/30Hf/e«<  su/jen'or 545 

6.  7,  9.  Should  be  remembered  that  the  company  is  virtually  present      .       547-549 
8.   Where  the  company  owes  a  special  duty,  the  act  of  the  servant  is  always 

that  of  the  company 549 

10.  Ratification  of  the  act  of  an  agent,  what  constitutes 550 

11.  Liability  of  corporations  for  the  publication  of  a  libel 551 

12.  Powers  of  a  corporation  such  only  as  are  conferred  by  charter 551 

13.  False  certificate  that  capital  has  been  paid  in  money 552 

14.  Gas  company  not  bound  to  supply  gas  to  all  wiio  require  it 552 

15.  Company  may  be  responsible  for  false  imprisonment 552 

16.  Company  responsible,  for  injury  done  by  vicious  animals  kept  or  suffered  to 

remain  about  its  stations 553 

17.  General  manager. of  company  may  bind  it  for  medical  aid  for  servant  in- 

jured in  its  emploj'ment 553 

18.  Superintendent,  or  general  manager  can  give  no  valid  authority  to  subordi- 

nates to  do  an  act  operating  as  a  fraud  upon  the  company 554 


SECTION  IIL 

INJURIES    TO    SERVANTS    BY    NEGLECT    OF    FELLOW-SERVANTS,    AND    USE    OF 
MACHINERY. 

1.  In  general,  company  not  liable  to  servant  for  negligence  of  fellow-servant       554, 

555 

2.  Otherwise  if  at  fault  in  employing  unsuitable  servants  or  machinery  .       556-562 

3.  Not  liable  for  deficiency  of  help  or  for  defect  in  fence,  whereby  cattle  come 

on  road  and  throw  engine  from  track 562 

4.  Qucpje,  whether  the  rule  applies  to  servants  of  different  grades    .     .     .      562,  563 
n.  (g).  Fellow-servants  within  the  meaning  of  the  rule,  who  are     .     .       56;j-565 

5.  Principal  rule  not  adopted  in  some  states,  nor  in  Scotland 564,  565 

6.  Ship-owner  does  not  impliedly  contract  with  seamen  that  ship  is  seaworthy    566, 

567 

7.  Rule  does  not  apply  where  servant  lias  no  connection  with  the  particular 

work 568 

8-10.  Cases,  English  and  American,  illustrating  the  accepted  doctrine     .       568-573 

11.  Company  may  show  in  excuse,  that  the  damage  accrued  through  disregard 

by  fellow-servant  of  settled  rules 573 

12.  Servants  of  one  company,  not  fellow-servants  with  those  of  another  com- 

pany using  the  same  station  where  the  injury  occurred    ....       573,574 

13.  Injury  caused  by  intoxication  of  fellow-servant.     Proof  of  knowledge  by 

company  that  servant  is  an  habitual  drunkard  tends  to  show  culpable 
neglect 574,  575 

14.  Employer  liable  where  his  own  negligence  concurs  with  that  of  fellow-ser- 

vant      575 


ANALYSIS    OF   CONTENTS.  xllii 

SECTION  Illfl. 

PROOF    OF    NEGLIGENCE,    ETC. 

1.  Injury  to  passenger  raises  a  presumption  of  want  of  due  care  on  the  part  of 

company 575 

2.  Tliat  presumption  may  be  rebutted G7(j 

8.  Person  riding  on  a  pass,  or  in  tiie  bagjrjipo  car,  may  liave  an  action  for  inju- 
ries caused  by  want  of  due  care,  if  a  passenger  and  free  from  fault    .     .  570 

SECTION  IV. 

INJURIES    BY    DEFECTS    IN    HIGHWAYS    CAUSED    BY    COMPANY'S    WORKS. 

1.  Company  liable  for  injuries  caused  by  leaving  streets  in  insecure  condition     577, 

•578 

2.  Municipalities  liable  primarily  to  travellers  suffering  injury 57!) 

3.  Comi)any  liable  over  to  municipality 579,  580 

4.  'I'owns  liable  to  indictment.     Compiiny  liable  to  mandamus  or  action      .     .     580 

o.  Construction  of  a  grant  to  use  streets  of  a  city 580,581 

6.  Such  grant  gives  the  public  no  right  to  use  the  tracks 581 

7-  Comjtany  by  charter  required  so  to  construct  road  as  not  to  obstruct  liigh- 

way,  bound  to  keep  highway  in  repair 581 

8.  Municipalities  not  responsible  for  injuries  resulting  from  jjroper  exercise  of 

authority  to  occupy  street 581,  582 

9.  Canal  company  not  excused  from  maintaining  farm  accommodations  by 

railway  interference 582 

10.  Railway  track  crossing  j)rivate  way 582 

11.  Person  opening  company's  gates  contrary  to  law  cannot  recover     .     .     .582,583 


SECTION   V. 

LIABILITY    FOR    INJURIES    IN    THE    NATURE    OF   TORTS. 

1.  Railway  crossings  on  a  level  always  dangerous.     Need  of  legislation  .      583-585 
«.  (a).  Conduct  required  of  company  ami  traveller  at  such  crossings  .       684,  585 

2.  Company  not  excused  from  the  exercise  of  care  by  use  of  the  signals  re- 

quired by  statute 585,  586 

3.  Traveller  cannot  recover  if  his  own  act  contributed  to  bis  injury    .     .       580-5'JO 

4.  Unless  company  might  have  avoided  the  injury 5"J1,  592 

5.  Omission  of  proper  signals  will  not  render  company  liable,  unless  it  pro- 

duces the  injury 592 

G.  Company  not  liable  for  injury  to  trespassing  cattle,  unless  guilty  of  wilful 

wrong 692 

7.  General  rule  requires  of  company  the  conduct  of  skilful,  prudent,  and  dis- 

creet jiersons 6'J3-505 

8.  Action  accrues  from  tlic  doing  of  the  injury 595 

9.  Where  injury  is  wanton,  jury  may  give  cxcmpl.iry  damages  ....       595.  690) 

10.  Traveller  wilt)  follows  direction  of  gate-keeper  excused 690 

11.  Company  res]>onsible  for  injm-y  when  the  crossing  is  opened  b}'  flagman     .     690 

12.  Hesiionsihility  of  company  for  d;images  mainly  matter  of  fact,  each  case 

depending  on  its  peculiar  circumstaiu'os 697 

•13.  Company's  right  of  way,  sjieeil,  negligence,  &c 597 

14.  Company  may  establish   and   use  proper  and  necessary  signals,  e.  g.,  hy 

whistles,  in  the  conduct  of  its  business 597,598 

15.  Duty  of  company  in  driving  trains  in  a  city.     Presumption  of  neeligcnce    .     598 

16.  Company  responsible  for  damage  caused  by  needless  letting  off  of  steam     .     698 


Xliv  ANALYSIS   OF    CONTENTS. 

SECTION    VI. 

MISCONDUCT    OF    RAILWAY    OPEIIATI VliS    SHOWN    BY    EXPEUTS. 

1.  Train  nianat;emeiit  so  far  matter  of  art  and  science,  that  testimony  of  ex- 

l)crts  may  be  received 0^9,  GOO 

2.  Burden  of  proof  in  cases  of  tort.     Company,  wlien  bound  to  produce  expert 

testimony  in  exculpation 600 

3.  Plaintiff  not  hound  in  opening  to  produce  testimony  from  experts    ....     000 

4.  Omission  to  produce  such  testimony,  however,  will  often  require  explauation   (iOO 
n.  0.  General  rules  in  regard  to  the  testimony  of  experts OUO,  GOl 

CHAPTER   XXL 

KAILWAY    DIRECTOKS. 

SECTION    I. 
EXTENT    OF    AUTHORITY    OF    DIRECTORS. 

1.  In  general,  directors  may  do  any  act  in  the  range  of  the  company's  business 

which  the  company  might  do 602,  603 

2.  Applications  to  legislature  for  enlarged  corporate  powers,  or  right  to  sell 

works,  require  consent  of  shareliolders 603,604 

3.  Constitutional  requirements  as  to  mode  of  exercising   corporate   powers 

must  be  strictly  followed 604 

4.  Directors  cannot  essentially  alter  nature  of  business,  nor  can  majority   of 

shareholders      604-606 

6.  Equity  has  some  control,  but  inherent  difficulty  in  defining  the  proper  limits 

of  railway  enterprise 606 

6.  Acts  tiltid  vires  can  be  confirmed  only  by  actual  assent  of  general  body  of 

shareholders 607,  608 

7.  Directors  of  any  trading  corporation  may  give  bills  of  sale  in  security  for 

debts 609 

8.  Directors  cannot  bind  company  except  in  conformity  with  charter      .     .     .     609 

9.  Company  cannot  retain  money  obtained  by  fraud  of  directors 609 

10.  Fraud  not  made  out  without  proof  that  party  was  misled  without  his  own 

fault 009,610 

11.  Company,  by  adoi)ting  act  of  directors,  makes  itself  responsible     ....     010 

12.  Prospectus  and  report  should  contain  the  whole  truth 610 

13.  Directors  eamiot  issue  shares  to  procure  votes  and  control  corporation    .     .     610 

14.  Praud  in  the  reports  of  the  company,  what  constitutes 610,611 

15.  Directors  responsible  for  fraudulent  acts  and  representations 611 

16.  Directors  may  ratify  any  act  which  they  have  power  to  do 611 

17.  Directors  represent  the  company  in  dealing  with  employe's 611 

18.  Equity  will  not  require  a  useless  or  injurious  act  even  to  remedy  a  proceed- 

ing ultra  vires 611,  612 

19.  Acceptance  by  corporation  of  the  avails  of  a  contract  will  amount  to  ratifi- 

cation  612 

SECTION   II. 

PERSONAL    LIABILITY    OF    DIRECTORS. 

1.  Lawful  acts  of  directors.     Directors  not  personally  liable       ....       612,613 

2.  Otherwise  if  they  undertake  to  be  personall}-  liable 613,  614 

3.  So  if  they  assume  to  go  beyond  their  powers 614 

4.  Extent  of  powers  often  affected  by  usage  and  course  of  business     ....     615 

5.  6.  Contract  beyond  the  power  of  the  company,  or  not  in  usual  form,  direc- 

tors personally  liable 616 


ANALYSIS   or    CONTENTS.  xlv 

SECTION  III. 

COMPENSATION    FOR    SERVICE    OF    DIRECTORS. 

1.  In  England,  directors  not  entitled  to  compensation  for  services  .     .     .      C16,  C17 

2.  Company  may  grant  an  annuity  to  a  disabled  officer,  tliougli  not  specially 

empowered 017 

3.  In  this  country  directors  entitled  to  compensation,  in  conformity  to  the 

order  of  t  lie  board C17 

4.  Some  states  follow  the  English  rule 018 

6.  Official  bond  strictly  limited  to  term  for  which  officer  is  elected      ....     018 

SECTION  IV. 

RECORDS    OF    THE    PROCEEDINGS    OF    DIRECTORS. 

1.  English  statutes  require  minutes  of  proceedings  of  directors,  and  make 

them  evidence 019 

2.  Presumption  that  minutes  contain  all  that  passed      .     .     .  ^ 619 

3.  Presumption  from  non-production  of  minutes  that  company  ratified  acts  of 

directors 019 

SECTION   V. 

AUTHORITY    OF    DIRECTORS   TO    BORROW    MONET,  &C. 

1.  Authority  of  directors,  express  or  implied,  to  bind  company 620 

2.  Power  to  bind  company  through  agent  of  their  appointment .     .     .     •       620,  6'Jl 

3.  Contracts  in  excess  of  authority  under  seal  of  company  prima  facie  binding     021 

4.  Strangers  must  take  notiee  of  general  want  of  authority  in  directors,  but 

not  of  mere  informalities 622 

f).  Corjxjration  cannot  subscribe  for  stock  of  other  companies 022 

6.  Corporation  may  borrow  money,  if  re(iuisite 023 

w.  (a).  Or  loan  money  to  aid  in  auxiliary  work 023 

7.  Power  of  directors  to  accept  subscription  payable  in  land 623 


SECTION    VI. 

DIRECTORS  BOUND  TO  SERVE  THE  INTEREST  OF  COMPANY. 

1.  General  duty  of  such  officers  defined.     Trust  relation 624 

2,  3.  Contracts"  for  secret  service  and  infiuence  with  directors.     Legality      625-627 
4,  5.  Directors  cannot  buy  from  themselves  for  the  company.     But  company 

may  ratify ''27,  628 

71.  (b).  Nor  can  they   acquire  for  themselves  properly  whieli  they  should 

acquire  for  the  eompaiiy G27 

6.  They  may  purchase  shares  of  one  another  to  promote  harmony  in  the  board     628 

7.  May  loan  money  to  company,  though  forbidden  to  participate  in  profits  of 

C()mt)any's  contracts fi28 

8.  Director  f/''/ar/o  treated  as  director  so  far  as  nffi?cts  claims 028 

n.  Hotel  compiiny  may  lease  premises  to  others 028,  029 

10.  Director  cannot  recover  for  work  done  for  company _    029 

11.  Contract  of  projector  with  directors  not  binding  on  company,  if  not  condi- 

tional on  formation  of  the  comjiany C20 

12.  Director  forbidden  to  act  where  interested,  may  still  vote  as  shareholder     .     029 

13.  Court  will  not  act  on  petition  against  directors  brought  by  member  who  is 

a  mere  puppet  for  others G29,  030 


xlvi  ANALYSIS   OF    CONTENTS. 

14.  Directors  cannot  charge  to  company  costs  of  libel  suit  brought  for  defama- 

tion of  themselves fi30 

15.  Directors  resjjonsible  for  wrongful  acts  of  each  otiier,  if  known  at  the  time  (JoO 
10.  llight  of  courts  to  appoint  receivers  and  take  the  management  of  corpora- 
tions      630 

17.  Directors  personally  responsible  for  money  expended  in  raising  the  price  of 

siiares 031 


SECTION   VII. 

RIGHT    TO    DISMISS    EMPLOYES    DAM.\GES    FOR    WRONGFUL    DISMISSAL. 

1,  2.  Whether  employe',  if  wronfifully  dismissed,  may  recover  salary  for  full 

term.     English  courts  hold  not 031,  0."2 

3.  Some  American  cases  take  the  same  view 632 

4.  Where  the  contract  provides  for  a  term  of  wages,  after  dismissal,  it  is  to  be 

regarded  as  liquidated  damages 633 

5.  Statute  remedy  in  favor  of  laborers  of  contractors,  extends  to  laborers  of 

sub-contractors 633 


CHAPTER   XXII. 

ARRANGEMEXTS    BETWEEX    DIFFERENT    COMPANIES. 

SECTION  I. 

LEASES,    AN'D    SIMILAR   CONTRACTS,    REQUIRE    THE    ASSENT    OF    LEGISLATURE. 

1.  In  England,  by  statute,  company  may  contract   with  another  for  riglit  to 

pass  over  its  road.     Contract  binding 034,  035 

2.  Cannot  transfer  as  by  lease  duty  of  one  company  to  another,  without  legis- 

lative grant 035,  036 

3.  Leasing  company  still  liable  to  public.     Lial)ility  of  lessee     ....      G36-63Q 

4.  Equity  will  enjoin  company  from  leasing,  without  legislative  consent      .     .     039 

5.  Such  contracts,  made  under  legislative  permission,  are  to  be  carried  into 

effect 639 

6.  Majority  of  company  may  obtain  enlarged  powers,  with  new  funds    .      039,  040 

7.  So  the  majority  may  defend  against  proceedings  in  legislature  .     .     .      040,  041 

8.  Legislative  sanction  will  not  render  valid  contracts  tdtra  vires 041 

9.  Company  cannot  assume  duties  of  ferry,  without  legislative  grant  .     .      041,  042 

10.  Grant  to  company  of  implied  right  to  establish  a  ferry  to  connect  its  ter- 

minus with  depot  on  opposite  side  of  river,  does  not  extend  responsibil- 
ity of  company  as  a  carrier  by  rail  to  the  ferry 042 

11.  Such  ferry  by  gratuitous  carriage  of  passengers  may  infringe  franchise  of 

another  ferry 642 

12.  Grant  to  company  of  a  ferrj'  in  express  terms  will  not  authorize  carriage  of 

anything  except  its  p.isscngcrs  and  freight 042 

13.  Legislative  confirmation  of  a  railway  and  its  location  will  not  affect  past 

defaults 042 


SECTION  IL 

NECESSITY  FOR  SEAL  ON  CORPORATE  CONTRACTS. 

1.  Necessity  for  seal.     English  courts  hold  seal  necessary  ;  American,  hold  not    043 
3.  What  constitutes  a  seal,  according  to  modern  use 048 


ANALYSIS   OF   CONTENTS.  xlvii 

SECTION   III. 

DUTY    OF    THE    RESPECTIVE    COMPANIES    TO    PASSENGERS    AND    OTHERS. 

1.  C()mj)any  owning  road  bound  to  keep  road  safe.     Acts  of  other  companies 

no  e.xcuse 048,019 

2.  Distinction  between  cases  of  negligence  in  operating  and  cases  of  negligence 

in  constructing  the  road 049 

3.  I'asseniicr  carriers  in  t;ciicral  bound  to  make  landinu;  places  safe     .     .      050,  051 

4.  I'assen^'crs  on  frcij^'ht  trains  by  favor,  can  require  only  sucii  security  as  is 

usual  on  sucii  trains 051 

6.  Owners  of  all  property  bound  to  keep  it  in  state  not  to  expose  others  to  in- 

jury      051 

0.  Rule  extends  to  railway  companies,  as  to  persons  rightfully  on  their  roads      052 

7.  Corporation  keeping  open  public  works  is  bound  to  keep  them  safe  for  use    052, 

cry-i 

8.  Corporation  presumptively  responsible  to  the  same  extent  as  natural  per- 

son in  tile  same  situation 053 

9.  Railway  company  hauling  cars  of  a  connecting  road  over  its  line  responsi- 

ble as  a  cuininon  carrier 053,  054 

SECTION  IV. 

POWERS    AND    DUTIES    OF    LESSEES    OF    RAILWAYS. 

1.  Construction  of  a  lease  in  an  important  case 054-058 

2.  Lessees  of  railways  liable  for  their  own  acts,  and  for  many  acts  of  lessors    .    058 

SECTION  V. 

CONTRACTS   BETWEEN    COMPANIES    REGULATING    TRAFFIC. 

1.  Such  contracts  generally  held  valid  and  binding 058,  G59 

2.  Arrangements  to  avoiil  competition  valid.     Pooling (>')9 

3.  Construction,  lurce,  and  operation  of  contracts  between  companies      .     .     .     000 

SECTION  VI. 

WHAT    CONSTITUTES    A    PERPETUAL    CONTRACT    BETWEEN    COMPANIES. 

1.  Railway  connections  commonly  temporary OGO,  001 

2.  Such  arrangements  matter  mainly  of  public  convenience  and  subject  to  legis- 

lative control OCl 

SECTION   VII. 

CONTRACTS    BY    RAILWAYS    ULTRA    VIRES    AND    ILLEGAL. 

1.  Contracts  to  make  erections  not  authorized  In-  their  charter  ....       C61,  002 
M.  (a).  Contracts  for  sale  or  purchase  of  road 002 

2.  Contracts  to  indemnify  other  companies  against  expense 0'"'2 

3.  Contracts  to  divide  jirotits 003 

4.  Contracts  for  land  for  alteration  of  n  branch,  pending  application  to  legisla- 

ture for  power  to  niter 603,  064 

5.  Acceptance  of  bills  of  exchange.     No  implied  power 664 

n.  (c).  Guaranty  of  bonds  of  other  company.     Issue  of  preferred  stock   .     .     004 

6.  Contracts  ultra  vires  cannot  be  specifically  enforced  against  the  directors     .     004 


xlviii  ANALYSIS   OF   CONTENTS. 

7.  Money  unlawfully  borrowed,  company  must  refund CG4,  6G5 

8.  Confirmation  of  acts  ullra  vires.     Acquiescence  does  not  confirm.     Other- 

wise, somctiiiies,  acceptance  of  consideration  (>()-3,  GGG 

9, 10.  Coin])any  not  restrained  from  making  unlawful  payments  on  tlie  ground 

of  policy 606 

11.  Qmvre,  if  tliere  is  legal  distinction  between  matters  of  internal  manage- 
ment beyond  powers,  and  other  matters  beyond  powers    ....      GGG,  667 
n.  15.  Permanent  arrangements  between  companies  in  different  states  ultra 

vires 667, 668 


SECTION   VIII. 

COMPANIES    EXONERATED    FROM    CONTRACTS    BY    ACT    OP    THE    LEGISLATURE  .       .       668 

SECTION   IX. 

WIDTH    OF    GAUGE. .JCXCTION    WITH    OTHER    ROADS. 

1.  Charter  requiring  broad  gauge  does  not  prohibit  mixed  gauge 669 

2.  Permission  to  unite  with  another  road  signifies  a  road  de  facto 669 

3.  Equity  will  sometimes  enjoin  company  from  changing  gauge 669 

4.  Contract  to  make  gauge  of  the  companies  the  same,  although  contrary  to 

law  of  state,  at  its  date,  may  be  legalized  by  statute 670 

5.  Import  and  construction  of  the  term  "  railway  connection  " 670 


PART   VII. 

THE   LAW  OF    MANDAMUS    AND   OTHER    PREROGATIVE 
REMEDIES    AS   APPLIED   TO   RAILWAYS. 

CHAPTER   XXIII. 

MANDAMUS. 

SECTION    I. 
GENERAL    RULES    OF    LAW    GOVERNING    THIS    REMEDY. 

1.  Supplementary  remedy.     Available  where  other  remedy  is  wanting  .      673,  674 

2.  Mode  of  procedure.     Matter  of  discretion.     Alternative  writ      .     .     .      674,  675 

3.  Proceedings  in  American  courts,  in  general 675 

4.  Amendment  of  apjjlication  not  allowed  in  England 676,  677 

5.  Sim|)lified  proceedings  under  common  law.     Procedure  Act 677 

6.  Trial  of  the  truth  of  the  return  to  the  alternative  mandamus 678 

7.  Costs  rest  in  the  discretion  of  the  court 678 

8.  Mode  of  service.     DcliviTy  of  the  original,  &c 679 

9.  Mandamus  had  under  late  Knglish  statutes,  by  indorsement  of  claim  on 

writ  in  ordinary  action 679,  680 

SECTION  II. 

PARTICULAR    CASES    WHERE     MANDAMUS     LIES    TO    ENFORCE     DUTY    OF     CORPO- 
RATIONS    6a0,  681 


ANALYSIS   OF   CONTENTS.  xlix 


SECTION   III. 

MANDAMUS    APPnOPRIATE    TO   KEINSTATE    OFFICERS    AND    MEMKERS    OF    COUPORA- 
TIONS    IN    POSITIONS    TAKEN    FROM    TIIEM    IIY    THE    CORPORATION. 

1.  Formerly  granted  only  to  restore  to  public  office 082-085 

2.  Now  granted  in  all  cases  where  the  office  is  of  value  and  sufficiently  perma- 

nent       (180-088 

3.  Not  available,  where  election  annual  and  issue  one  of  fact,  and  not  triable 

within  tiie  term 088 

4.  Claimant  must  have  permanent  and  vested  interest 688 


SECTION  IV. 

MANDAMUS   TO    COMPEL   COMPANY    TO   COMPLETE    ROAD. 

1.  English  courts  formerly  required  company  having  a  general  grant  to  com- 

plete its  road 080,  690 

2.  Otherwise  now,  unless  under  peculiar  circumstances 090 

3.  Mandamus  to  compel  company  to  operate  its  road 091 

SECTION  V. 

CASES    IN   WHICH    THIS    IS    THE    PROPER    REMEDY. 

1.  Compelling  company  to  complete  its  road  where  the  act  is  imperative     .     .  092 

2.  Mandamus  more  proper  remedy  in  such  case  than  injunction 093 

3.  Commissioners  of  public  works  not  subject  to  the  writ 093,094 

4.  I'ublic  duties  of  corporations  enforced  by  mandamus 094 

5.  Facts  tried  by  jury.     Instances  of  this  remedy 695 

G.  Caimot  be  substituted  for  certiorari  when  that  is  taken  away 096 

7.  Issues  to  compel  the  allowance  of  costs 690 

8.  Other  instances  of  its  application 096 

9.  Lies  where  the  duty  is  clear  and  no  other  remedy 697 

10.  Not  awarded  to  control  legal  discretion 097,  098 

11.  Nor  to  tr}' the  legality  of  an  election 099 

12.  Lies  to  compel  transfer  of  stock 099 

13.  Lies  also  to  compel  a  railway  company  to  have  damages  estimated  under 

statute 099 

SECTION  VL 

PROPER  EXCUSES,   OR   RETURNS   TO   THE   WRIT. 

1.  Return  that  powers  of  company  had  expired  at  date  of  writ,  good      .     .     .  700 

2.  So  of  return  of  want  of  funds  to  perform  duty 701 

3.  Otherwise  of  return  that  road  is  not  necessary,  or  would  not  be  remunera- 

tive        701 

4.  Part  of  return  may  be  quashed  and  answer  required  to  remainder  .     .      701,  70-J 

5.  Counsel  for  petitioner  entitled  to  open  and  close 7('2 

0.  Koturn  of  want  of  power  to  do  tJic  act  required  by  tlie  charter  is  bad      .     .  7(i2 

7.  Peremptory  writ  cannot  issue  till  whole  case  is  tried 702 

8.  Court  will  not  quash  return  summarily     . 702 

9.  Non-compliance  with  peremptory  writ  admits  of  no  excuse    ....      702,  703 

SECTION  VII. 


ALTERNATIVE  WRIT    REQUIRING    TOO    MUCH,  RAD,  FOR    THAT  WHICH    IT    MIGHT 

HAVE    MAINTAINED     

VOL.  I.  —  d 


702 


1  ANALYSIS   OF   CONTENTS. 

SECTION   VIII. 

ENFORCING   PAYMENT   OF    MONEY   AWARDED    AGAINST    RAILWAY. 

1.  Enforcing  payment  of  money  by  corporations  by  mandamus 704 

2.  Wiicre  debt  will  lie,  mandamus  will  not 704,  705 

3.  Mandamus  proper  to  compel  payment  of  compensation  under  statute      .     .     705 

4.  Mandamus  not  allowed  in  matters  of  equity  jurisdiction 705,706 

5.  Contracts  of  company  not  under  seal  enforced  by  mandamus 700 

6.  Where  a  statute  imposes  a  specific  duty,  an  action  will  lie 706 

SECTION   IX. 

■WKIT    SOMETIMES    DENIED    IN    MATTERS    OF    PRIVATE    CONCERN. 

1.  Denied  to  compel  company  to  divide  profits 707 

2.  Allowed  to  compel  production  and  inspection  of  corporation  books     .     .     .     707 

3.  Allowed  to  compel  the  performance  of  statute  duty,  but  not  to  undo  what 

is  done 708 

4.  Allowed  to  compel  the  production  of  the  register  of  shares,  or  the  registry 

of  the  name  of  the  owner  of  shares,  and  in  other  cases     ....       708,  709 

5.  Common  remedy  for  restoring  persons  to  corporate  oflices  of  which  they 

are  unjustly  deprived 709,  710 

SECTION  X. 

REMEDY   LOST   BY   ACQUIESCENCE. — PROCEEDING    MUST   BE    BONA   FIDE. 

1.  Remedy  must  be  sought  at  earliest  convenient  time 711,  712 

2.  Courts  will  not  hear  such  applications  made  merely  to  obtain  opinion  of 

court 712 

3.  Application  any  time  within  statute  of  limitations 712 

SECTION   XL 

BIANDAMUS    ALLOWED    WHERE    INDICTMENT    LIES. 

1.  Mandamus  sometimes  lies  where  act  in  question  is  indictable     .     .     .      712,  713 

2.  Lies  to  compel  company  not  to  take  up  tiieir  rails 713 

3.  Denied  where  there  is  other  adequate  remedy 713 

SECTION  XIL 

JUDGMENT   UPON   PETITION   FOR   MANDAMUS   RE VI SABLE   IN    ERBOB.       ....      714 

CHAPTER  XXIV. 

CERTIORARI. 

SECTION  L 

TO   REVISE   PROCEEDINGS    AGAINST    RAILWAYS. 

1.  Lies  to  bring  up  unfinished  proceedings,  or  revise  those  not  according  to 

the  common  law 715,  716 

n.  (a).  Lies  not  in  lieu  of  appeal  or  writ  of  error.     Barred  by  statute  mak- 
ing decision  final 715,  716 

2.  Writ  of  very  extensive  application,  unless  controlled  by  statute     ....     716 

3.  Judgment  in  case  fully  heard  in  King  s  Bench  on  rule  to  show  cause,  judg- 

ment entered  without  waiting  to  bring  up  record  on  certiorari   .     .     .     .     717 


ANALYSIS   OF   CONTENTS.  \\ 

SECTION   II. 

WHERE    THERE    13    AN    EXCESS   OF   JURISDICTION 717,71b 

SECTION  III. 

JURISDICTION    AND    MODE    OF    PROCEDURE. 

1.  Lies  in  cases  of  irregularity,  unless  taken  away  liy  statute     ....      718,719 

2.  Inquisitions  before  officers,  not  known  in  liio  law 719 

3.  Issuing  of  the  writ  matter  of  discretion.     Defects  not  amendable    .     .       719,720 

4.  Not  allowed  for  irregularity  in  proceedings,  or  evidence,  or  form  of  judg- 

ment      720 

CHAPTER  XXV. 

INFORMATIONS   IN    THE   NATURE   OF    QUO   WARRANTO. 

1.  General  nature  of  the  remedy.     Now  much  controlled  by  statute   .     .     721,  722 

2.  Its  exercise,  in  absence  of  statute,  confined  to  highest  court  of  ordinary 

civil  jurisdiction 722 

3.  In  the  English  practice,  this  remedy  extended  to  municipal,  but  not  to  pri- 

vate corporations 722 

4.  In  this  country  it  has  been  extended  to  private  corporations 723 

6.  It  will  remove  an  usurper  of  office,  but  not  restore  the  one  rightfully  enti- 
tled       723,  721 

6.  Nor  will  it  lie  to  prevent  railway  company  from  opening  part  of  road  until 

rest  is  completed 724 

7.  Nor  against  company  for  the  issue  of  stock  below  par,  or  for  beginning  to 

build  road  before  subscription  is  full 724 

8.  Form  of  the  judgment  depends  on  facts  proved  and  objects  sought     .     .     .     725 

9.  Rules  in  regard  to  taxing  costs 725 

10.  Used  to  test  corporate  existence  and  power 725 

11.  Penalties  provided  by  charter  cannot  subsequently  be  increased  to  a  tbr- 

feiture 726 

12.  But  a  grant  of  corporate  franchises  may  be  annulled  when  its  purposes 

have  failed 720 

13.  5riVr/an'«s  the  proper  remedy  to  determine  forfeiture 720 

14.  Insufficient  excuses  for  failure  to  repair  a  turnpike  road 727 

15.  This  remedy,  under  some  statutes,  does  not  supersede  any  equitable  redress  727 


TABLE    OF    CASES. 


A. 

Paoe 
Abbott  V.  Johnstown,  Gloversville,  & 

K.  K.  Co.  G3G,  637 

Aberdeen  Kailway  Co.  v.  Blakie  79 

Aberystwitli  Kiiilwa y  Co  ,  In  re  30 

Abraliani  v.  Great  Northern  li.  Co.      833 

V.  He3'nohls  672 

Ackland  r.  Lewis  107 

Adair  i;.  Sliaw  168 

Adams  v.  Ferick  147 

V.  Frve  120 

V.  London  &  Rlackwall  R.  Co.       389 

V.  Saratoga  &  Washington  R.  Co.  313, 

319 
Adden  v.  White  Mountains  R.  Co.  309 
Adderly  v.  Storm  132 

Adler  v.  Milwaukee  Patent  B.  Co.  100 
Adiey  v.  Wiiitstabie  Co.  83 

A<'Ana.  Insurance  Co.  v.  Hannibal  & 

St.  Joseph  1{.  Co.  475 

Agar  V.  Athenajum  Life  A.  Co.  622 

Agricultural  Bank  v.  Burr  111 

r.  Wilson  111 

Agricultural  Branch  R.  Co.  v.  Win- 
chester 172 
Aiken  v.  Western  Railroad  Co.  642 
Alabama  &  Florida  R.  Co.  i;.  Waller  5-57 
Alabama  &  Tennessee  R.  Co.  y  Kidd  643 
Alabama    Great  S.  R.  Co.  v.  McAl- 

pine  400 

V.  Powers  491 

Albany  Northern  R.  Co.  v.  Lansing  27L 

270,  312 
Albert  v.  Northern  Central  R.  Co.  473 
Alden  v.  White  Mountains  R.  Co.  270 
A  Id  ham  v.  Brown  30 

Aldred  v.  North  Midland  R.  Co.  31,  409 
Aldrich  ;;.  Cheshire  Uaiiroad  Co.  307,340 
Alilridge  v.  Great  Western  U.  Co.  408 
Alexander  r.  Crystal  Palace  II.  Co.  371 
Alexandra  Park  Co.,  In  re  452 

Alexandria  &  Frederick.«bnrg  R.  Co. 
V.  Alexandria  &  Washington 
R.  Co.  237 

I'.  Faunce  302 

Algeo  V.  Algeo  6.S2 

Alger  V.  Mississippi  &  Missouri  R.  Co.  502 


P.10E 

Alleghany  v.  Ohio  &  Pennsylvania  R. 

Co.  325 

Alleghany  City  r.  McClurkan  608 

Allen  V.  Graves  123 

r.  Hay  ward  510 

V.  Montgomery  Railroad  Co.         102 

V.  Utica,  Ithaca,  &  E.  R.  Co.  294 

Allman  v.  Havana  Railroad  Co.    104,  174 

689 


AUyn  V.  Boston  &  Alhanj'  R.  Co. 

V.  Providence,  Warren,  &  B.  R. 
Co. 
Alton  &  Sangamon  R.  Co.  v.  Baugh 

r.  Carpenter 
Alton  Railroad  Co.  r.  Northcott 
Ambcrgate,  Nottingham,  &  B.  &  E.  J. 
R.  Co.  I'.  Coulthard 

r.  Midland  Railway  Co. 

r.  Mitchell 

V.  Norclitre 
American  Railway  T.  Co.  v.  Haven 
American  Union  T.  Co.  i:  Harrison 

V.  Western  Union  T.  Co. 
Ammermon  v.  Wyoming  Land  Co. 
An<lerson  v.  Kerns  Draining  Co. 

r.  Newcastle  &  Richmond  K.  Co. 

I'.  Ohio  &  Mississippi  R.  Co. 
Anderson  Railroad  Co.  r.  Kernodlo 
Andover's  Case 
Andover  Turnpike  Co.  v.  Gould 

V.  Hay 
Andrews  v.  Ohio  &  Mississippi  R.  Co. 

V.  Portland 
Androscoggin  &  Kennebec  R.  Co.  v. 

Androscoggin  R.  Co. 
Androscoggin  Hallway  Co.  v.  Richards  89 
Anglo-California  Gold  M.  Co.  r.  Lewis  105 
Annapolis  &  Elk  Ridge  K.  Co.  r.  Gantt 

473,  481 
Anonvmous  46,  50,  709 

Anstruther  c.  East  Fife  R.  Co.  C02 

Anthony  Street,  In  re  284 

Antisdel  v.  Chicago  &  Northwestern 

R.  Co. 
Appleby  c.  ]V Fevers 
Applcford's  Case 

Applegale  r.  Lexington  &  Ohio  R. 
Co. 


284 
513 
271 
435 

177 
349 
144,  145 
177 
688 
423 
422 
582 
67 
58 
104 
383 
676 
160 
160 
172 
427 

06 1 


526 
432 
698 


310 


liv 


TABLE   OP   CASES. 


Arbuckle  r.  Illinois  Midland  R.  Co. 
Arclier  v.  Terre  Haute  &  I.  R.  Co. 
Arniington  f.  IJarnet  2.34, 

Arniistead  v.  North  Staffordshire  U. 
Co.  374,  38'J, 

Armstein  v.  Gardner 
Armstrong  t-.  Burnet 

V.  Waterford  &  Limerick  R.  Co. 
Arnold  v.  Hudson  River  R.  Co.      272, 

17.  Poole  360, 

r.  Ruggles 
Artlmr  v.  Commercial  &  Railroad  B. 
Asiiby  V.  Eastern  Railroad  Co.     283, 

Ashtabula  &  New  L.  R.  Co.  v.  Smith 
171,  202, 
Asliton  V.  Lord  Longdale 
Asiiuelot  Boot  &  S.  Co.  v.  Hoit 
Ashworth  v.  Stanwix 
Aspinvvall  v.  Ohio  &  Mississippi  R. 

Co. 
Assop  V.  Yates 
Aston  V.  Boore 
Asylum  v.  Phoenix  Bank 
Atchison  &  Nebraska  R.  Co.  v.  Baty 

V.  Gougli 

V.  Harper 
Atchison,   Topeka,   &   S.    R.   Co.  v. 
Bales  473, 

I'.  Edwards 

V.  Holt 

V.  Ireland 

V.  Jetferson  County  C.  696, 

V.  Jones 

I'.  Lujan 

V.  McCandliss 

V.  Moore 

V.  Patch 

V.  Stanford  473, 

AtlienjEum  Life  Ins.  Co. 
Atliol  Music  H.  Co.  v.  Carey 
Atkinson  i'.  Marietta  &  Cincinnati  R. 
Co.  276, 

Atlanta  v.  Central  Railroad  &  B.  Co. 

?•.  Gate  City  Gaslight  Co. 
Atlanta  &  Richmond  A.  L.  R.  Co.  v. 

Mangham 
Athinta  &  West  P.  R.  Co.  v.  Hudson 
Atlantic  &  Great  W.  R.  Co.  v.  Rob- 
bins 
Atlantic  &  Gulf  R.  Co.  r.  Fuller 
Atlantic  &  Ohio  R.  Co.  v.  Sullivant 

Atlantic  &  Pacific  R.  Co.  v.  St.  Louis 
Atlantic  &  Pacific  T.  Co.  v.  Union  Pa- 
cific R.  Co. 
Atlantic  &  St.  Lawrence  R.  Co.  v. 
Commissioners 
V.  Cumberland  County  C. 
Atlantic  Cotton  Mills  v.  Abbott 
Atlee  V.  Backhouse 
Attala  County  v.  Grant 
Attorney-General  v.   Birmingham  & 
'  Oxford  J.  R.  Co.  093, 


4.5.5 
635 
203 

407 
490 
147 
385 
312 
644 
107 
2.57 
284, 
355 
52, 
411 
106 
200 
658 

199 

5.59 
230 
697 
505 
274 
485 

481 

484 
500 
505 
697 
484 
484 
561 
564 
296 
481 
1.37 
200 

413 

264 
01 

435 
605 

383 
348 
62. 
245 
318 

065 

291 
283 
174 
460 
098 

724 


Attorney-General  v.  Davy  77 

V.  Delaware  &  Bound  B.  R.  Co.     726 
V.  Detroit  &  Erie  P.  R.  Co.  418 

V.  Dorset  Railway  Co.  280 

V.  Ely,  Haddenham,  &  S.  R.  Co.    612 
V.  Great  Eastern  K.  Co.  663 

V.  Great  Northern  R.  Co.  51,  139 

V.  Hudson  River  R.  Co.  335 

V.  Leaf  722 

V.  London  &  Southampton  R.  Co.  424 
V.  Lonsdale  324 

V.  Nichol  351 

V.  Rye  51 

V.  Sheffield  Gas  C.  Co.  351 

V.  Sittingbourne  &  Sheerness  R. 

Co.  2.32 

V.  Stevens  338 

V.  Tewksbury   &   Great    M.    R. 

Co.  413 

Augusta,  Bank  of,  v.  Earle  47 

Augusta  &  Savannah  R.  Co.  i'.  Mc- 

Elmurry  586 

Aurora  v.  West  411 

Aurora  &  Cincinnati  R.  Co.  r.  Law- 

renceburg  725 

V.  Miller  283 

Aurora  Branch  R.  Co.  v.  Grimes  497 

Austin,  Ex  parte  694 

Australasia  Bank  v.  Cherry  614 

Australian  Royal  M.  Co.  v.  Marzetti     645 
Aycock  V.  Williams  716 

Ayles  V.  Southeastern  R.  Co.  649 

Aylesbury  Railway  Co.  v.  Mount  180,  183 
r.  Thomson  153 

Ayres  v.  Morris  &  Essex  Railway  Co.    83 


B. 


Babcock  v.  Chicago  &  Northwestern 

R.  Co.  470 

V.  Western  Railroad  Co.         222,  338 
Backhouse  i'.  Bonomi  595 

Backus  V.  Lebanon  200,  269 

Bagge,  Ex  parte  109 

Bagnall  v.  London  &  Northwestern 

R.  Co.  358 

Bagshaw  r.  Eastern  Union  R.  Co.  8 

Bailey  v.  Hollister  199 

r.  New  York  344 

V.  Philadelphia  &  Wilmington  R. 

Co.  3.35 

I'.  Western  Vermont  R.  Co.  450 

Baily  v.  De  Crespigny  358 

Baird  c.  Pettit  5G5 

Baker,  Ex  jiarte  609 

r.  Jolinson  256,  300 

V.  Marshall  141 

V.  Western  &  Atlantic  R.  Co.  560 

Balch  V.  New  York  &  Oswego  M.  R. 

Co.  633 

Baldwin  v.  Canfield  77,  105 

V.  Commonwealth  127 

f.  Thunder  Bav  Boom  Co.  77 


TABLE  OP  CASES. 


Iv 


Baldwin  v.  Western  KailroaJ  Co.  591 

Biile  V.  Clellaiid  GIU 

Halls  V.  Metropolitan  Board  370 

Baltimore  &  Iliiiover  11.  Co.  »•.  Algire  22'-i 
Baltimore  &  Havre  <le  (iracc  T.  Co.  v. 

Northern  Central  U.  Co.  718 

Baltimore  &  Ohio  &.  C.  li.  Co.  v.  North 

2G4 
Baltimore  &  Ohio  R.  Co.  v.  Bahra        698 
V.  Bloeher  91 

V.  Breinig  589 

V.  Johnson  2^^H 

V.  Lamborn  513 

V.  Pittsburg,  Wheeling,  &,  K.  U. 

Co.  237,  281 

V.  Shipley  47:] 

V.  Sulphur  Spring  S.  D.  343 

I'.  Thompson  309,  364,  601 

r.  Wiieeling  197 

I'.  Whitacre  584 

Baltimore  &  Potomac  R.  Co.  v.  Ma- 

gruder  341 

Baltimore  &  Susquehanna  R.  Co.  v. 

Compton  308 

V.  Musselman  195 

V.  Nesbit  245,  303 

V.  Woodruff  470,  471,  594 

Baltimore  City  P.  R.  Co.  r.  Sewell        112 
V.  Wilkinson  102 

Baltimore,  Pittsburg,  &  C.  R.  Co.  i". 

Highland  224 

i\  Johnson  287,  510 

I'.  Lansing  305 

V.  Stoncr'  288 

V.  Thomas  601 

Banet  v.  Alton  &  Sangamon  R.  Co.     102, 

170,  196 
Bangor  &  Piscataqua  R.  Co.  v.  Harris  202 
Bangor  Bridge  Co.  r.  McMahon  160,  163 
Bangor  House  Proprietary  v.  Hinck- 
ley 100 
Bangor,   Old  town,   &  M.   R.   Co.   i-. 

Smith  252 

Bank  v.  Charlotte  192 

Bannon  r.  Baltimore  &  Ohio  R.  Co.      598 
Barber  c.  Esse.x  579 

Barclay  v.  Howell  259 

Bardstdwn    &  Louisville    R.  Co.     r. 

Metcalfe  44,  240 

Bargate  r.  Shortridge  109 

Barker,  At  parte  72 

1-.  Midland  IJaihvav  Co.  87 

V.  North  StalTordshire  K.  Co.  370 

1-.  Troy  &  Kutland  H.  Co.      414,  430, 

4.JJ 
Barlow,  In  re  710,  723 

Barnard  r.  Bagshaw  139 

V.  Wallis  2,  237 

Barned  v.  Hamilton  126 

Barnes  r.  Ward  651 

Barney  v.  Keokuk  816,  333 

Barnsley  Canal  Co.  r.  Twibell  350 

Barret  v.  Great  Northern  R.  Co.  89 

Barrett,  Ex  parte  142 


Barrett  r.  Maiden  &  Melrose  R.  Co.     553 
V.  Stockton  &  Darlington  R.  Co.    242 
Barringer  i;.  Delaware  &  Hudson  C. 

Co.  604 

Barrington  v.  Mississippi  Central  R. 

Co.  105 

Barron  v.  Baltimore  235 

V.  Eldredge  480 

Barrows  v.  Massachusetts  Medical  S.  710 
Barry  v.  Croskey  014 

V.  Merchants'  Exchange  Co.  103 

Barter  v.  Wheeler  637,  038 

Bartlett  v.  Baker  642 

Barton's  Case  ICG 

Barton  i-.  Port  Jackson  &  U.  F.  P.  R. 

Co.  007 

Bass  V.  Chicago  &  Northwestern  R. 

Co.  551 

I'.  Chicago,  Burlington  &  Q.  R.  Co.477, 

603 
Bassett  v.  Norwich  &  Nashua  R.  Co.  567 
Bateman  i'.  Mid-Wales  R.  Co.  664 

Bates  V.  Boston  &  New  York  C.  R.  Co.  648 
V.  New  York  Insurance  Co.  110 

Bath  River  N.  Co.  r.  Willis  245 

Batty  V.  Adams  County  200 

V.  Duxbury  570 

Battye  v.  Gresiey  78 

Baughman  v.  Shenango  &  Allegheny 

R.  Co.  577 

Baulec  v.  New  York  &  Harlem  R.  Co.  557. 

561 
Ba.xter  v.  Boston  &  Worcester  R.  Co.  517 
Bayley  v.  Manchester,  Sheffield,  &  L. 

U.  Co.  548 

V.  Wilkins  124 

Bayliffe  v.  Butterworth  124 

Bayntine  v.  Sharp  468 

Beach  v.  Smith  105,  188 

Bean  v.  Miller  427 

Beardmer  v.  London  &  Northwestern 

R.  Co.  400 

Bcattio  1-.  Ebury  613,  614 

Beaty  v.  Knowler  242 

Beaufort  v.  Swansea  Harbor  T.  401 

Beaulieu  v.  Finglam  469 

Bechnel  v.  New  Orleans  R.  Co.  639 

Beck  V.  United  New  Jersey  R.  &  C. 

Co.  253 

Beckett  v.  Midland  Railway  Co.  351,  392 
Beckitt  r.  Bilbrough  h,  127 

Beckwith  v.  Kansas  City  &  O.  R.  Co.  296 
r.  Sydeliothanj  601 

Bedford  Borougli  S.  D.  v.  Anderson  708 
Bedford  Railroa.l  Co.  c.  Bowser  177,  202 
Beebe  r.  Ay  res  05 

Beekman  v.  Saratoga  &  Schenectady 

R.  Co.  233 

Beene  r.  Cahawba  &  Afarion  R.  Co.  102 
Beers  r.  Honsatotiic  liailway  Co.  49<) 

Beisiegel  c.  New  York  Central  R.  Co.  597 
Belfast  &  Angelica  P.  R.  Co.  v.  Cham- 
berlain 59 
Belhaven's  Case                                     607 


Ivi 


TABLE   OF   CASES. 


Bell  r.  Francis  11 

V.  Gough  334 

V.  Hull  &  Selby  R.  Co.  339,  355 

V.  London  &  Northwestern  R.  Co.  603 

I'.  Midland  Railway  Co.  420 

Bellfontaine  &  Iowa  R.  Co.  i'.  Bailey  499 

Bellfontaine  Railroad  Co.  r.  Suinan     485 

Bellows  r.  Todd  7G 

Belmont  v.  Erie  Railway  Co.  630 

Beman  v.  Rufford  66,  639 

Bemis  v.  Connecticut  &  Passumpsic 

R.  R.  Co.  527 

Bend  v.  Susquehanna  Bridge  Co.     54, 180 
Benedict  v.  Colt  322 

Bennet  v.  Camden  &  Amboy  R.  Co.    282, 

292,  717 
V.  Dutton  05 

Bennett,  Ex  parte  163 

Benson, -E-r  parte  698 

Bentinck  v.  Norfolk  Estuary  Co.  249,  408 
Beresford's  Case  108 

Bermingham  v.  Sheridan  127 

Berry  v.  Pennsylvania  Railroad  Co.     587 
V.  St.  Louis,  Salem,  &  L.  R.  R.  Co.  532 
Besel  V.  New  York  Central  &  H.  R.  R. 

Co.  563 

Beverly  v.  Lincoln  Gas  L.  &  C  Co.     429, 

643 
Bevier  v.  Delaware  &  Hudson  C.  Co.  474 
Bidder  v.  North  Staffordshire  R.  Co.  223 
Bigelow  t'.  Mississippi  Central  &  T.  R. 

Co.  295 

r.  West  Wisconsin  R.  Co.  274 

Biggerstaff  v.  St.  Louis,  Kansas  C,  & 

N.  R.  Co.  520 

Bill  V.  Darenth  Valley  R.  Co.  646 

V.  Sierra  Nevada  L.  W.  Co.  51 

Binney's  Case  107 

Biiniey  v.  Hammersmith  &  City  R. 

Co.  375 

Birkenhead,  Lancashire,  &  C.  J.  R. 

Co.  V.  Pilcher  189,  190 

r.  Webster  177 

Birmingham  &  Oxford  J.  R.  Co.  v. 

Regina  374 

Birmingham,  Bristol,  &  T.  J.  R.  Co. 

V.  Locke  8,  153,  163,  180 

Bish  V.  Johnson  195 

Bishop  V.  Globe  Co.  108 

V.  Nortli  2 

Bissell  V.  Michigan  Southern  &  N.  I.  R. 

Co.  639 

Black  River  &  U.  R.  Co.  v.  Barnard       57 
r.  Clarke  57,  186 

Blackshire  v.  Atchison,  Topeka,  &  S. 

R.  Co.  295 

Blackwell  t-.  Wiswall  640 

Blair  r.  Corbv  457 

!•.  Grand  Rapids  &  T.  R.  Co.  555 

Blake  v.  Buffalo  Creek  R.  Co.  627 

V.  Ferris  539 

V.  Maine  Central  R.  Co.  557,  50 1 

V.  Rich  2.yj 

V.  Thirst  642 


Blakemore  v.  Bristol  &  Exeter  R.  Co.  651 
i;.  Glamorganshire  Canal  Co.         410, 
685,  G86,  687,  689 
Bland  v.  Crowley  27 

Bligh  V.  Brent  106 

Bliss  V.  Connecticut   &  Passumpsic 

R.  R.  Co.  291,  347 

V.  Hosmcr  248 

Blodgett  V.  Morrill  156,  157 

Blood  V.  Nashua  &  Lowell  R.  Co.  364 

Bloodgood  V.  Moliawk  &  Hudson  R. 

Co.  234,  247,  281,  299,  300,  543 


147 
13 
66 

628 


383 
108 
134 
422 
120 
116 
362 
383 
94 
321 


Blount  V.  Hipkins 

Bloxam,  Ex  parte 

V.  Metropolitan  Railway  Co. 

Bluck  V.  MuUalue 

Blue   Earth    County   v.   St.  Paul  & 
Sioux  C.  R.  Co. 

Blundell  r.  Winsor 

Blyth  V.  Carpenter 

Board  of  Trade  T.  Co.  v.  Barnett 

Boardman  ;•.  Gore 

Bog  Lead  Co.  v.  Montague 

Bogg  V.  Midland  Railway  Co. 

Bohlman  v.  Green  Bay  &  M.  R.  Co. 

Boice  V.  Hudson  River  Railroad  Co. 

Bolton  V.  Crowther 

Bonaparte  v.  Camden  &  Amboy  R. 
Co.  44,"  281,  298 

Bond  V.  Morse  615 

Bonner  i'.  State  709 

Boody  V.  Rutland  &  Burlington  R. 
Co.  452,  453 

Booker,  Ex  pai-te  158 

Boothby  v.  Androscoggin  &  Kennebec 
R.  Co. 

Bordeaux  v.  Erie  Railway  Co. 

Bordentown   &,  Soutii  A.  T.  v.  Cam- 
den &  Amboy  R.  Co. 

Bosanquet  t'.  Siiortridge 

Bostock  1-.  Nortli  Staffordshire  R.  Co.  258 

Boston  V.  Chesapeake  &  Ohio  R.  Co.    456 
V.  Lecrow 

Boston  &  Albany  R.  Co.  v.  Briggs 

Boston  &  Lowell  R.  Co.  v.  Boston  & 
Maine  R.  Co. 
V.  Proctor 
V.  Salem  &  Lowell  R.  Co. 

Boston  &  Maine  R.  Co.  v.  Babcock 

V.  Bartlett  202,  231 

V.  Lawrence  421 

V.  Middlesex  County  315 

V.  Montgomery  286 

Boston  &  Providence  R.  Co.  v.  Mid- 
land Railroad  Co.  299,400,  409 

Boston  &  Worcester  R.   Co.  v.  Old 
Colony  &  F.  R.  R.  Co.  290 

Boston,  &c.  R.  Co.  v.  Pearson  55 

Boston,  Barre,  &  G.  R  Co  v.  Welling- 
ton 65,  161 

Boston,  Hoosac  T.,  &  W.  R.  Co.  273 

Boston  Type  &  S.  F.  v.  Spooner  57 

Boston  Water   P.   Co.   v.   Boston   & 
Worcester  R.  Co.  263,  264,  333 


360 
98 

498 
109 


337 

508 

661 

94 

267 

229 


TABLE   OF   CASES. 


Ivi 


I'U 


Boswell  V.  Townsend  457 

Botlic  r.  Dayton  &  Micliigan  R.  Co.     .^HIJ 
Botkiii  I'.  Liviiitjston  220 

Botsford  r.  Micliigan  Central  R.  Co.     6G0 
V.  New  Ilnven,  Middlctown,  &  W. 

R.  Co.  4.55 

Bottomley  v.  Port  Huron  &  N.  R.  Co.  450. 

457 
Botts  ('.  Missouri  Pacific  R.  Co.  310 

Bougliton  V.  Carter  341 

Boiilton,  Kx  jiavtii  v.  Skelehley  149 

Bourn  r.  Atlantic  Railroad  Co.  304 

Bo  wen,  Kx  parte  13 

Bower  v.  Burlington  &  Southwestern 

R.  Co.  6.37 

V.  Gravville  &  Mattoon  R.  Co.       200 

Bowlby  i'.'Bell  124 

Bowman  v.  Troy  &  Boston  R.  Co.        4t)9 

V.  Venice  &  Carondelet  R.  Co.      294, 

3fi2 
V.  Wathen  338 

Bowring  r.  Shepherd  123 

Boyce  v.  Northern  Central  R.  Co.         240 
Boyd  V.  Chesapeake  &  Ohio  C.  Co.       003 
r.  Negley  203 

Boyer,  £.r  fxuie  334 

Boyle  V.  Philadelphia  &  Reading  R. 

Co.  401 

Boynton  v.  Peterboro'  &  Shirley  R. 

Co.  ^  299,  303 

Brabbits  v.  Chicago  &  Northwestern 

R.  Co.  555,  560 

Brace  v.  New  York  Central  R.  Co.       510 
Bracken  v.  Minneapolis  &  St.  Louis 

R.  Co.  317 

r.  Rusliville  Gravel  R.  Co.  224 

Bradley  v.  Ballard  000 

V.  Boston  &  .ALune  R.  Co.  585 

V.  Iloldswortli  100 

r.  London  &  Northwestern  R.  Co.    400 
I'.  New   York  &  New   Haven  R. 

Co.  44,  234,  242,  314,  322 

V.  New  York  Central  R.  Co.  554 

Bradshaw,  In  re  294,  380 

V.  Koilwrs  230 

Brady  v.  Rensselaer  &  Saratoga  R.  Co.  529 

Brainard  v.  Clapp  201 

V.  Connecticut  River  R.  Co.     231,  320 

V.  .Missisquoi  Railroad  Co.  318 

Branch  i\  Jesup  002 

Brand  v.  Hammersmith  &  City  R.  Co.  310, 

354,  357 
Branin  r.  Connecticut  &  Passumpsic 

R.  R.  Co.  457 

Brann  v.  Chicago,  Rock  I.,  &  P.  R. 

Co.  500,  505 

Branson  v.  Philadelphia  22(i,  270 

Bray  c.  Far  well  104,  174 

Bray n  ton  v.  London  &  Northwestern 

R.  ("o.  407 

Breed  i'.  Eastern  Railroad  Co.  380 

Breedlove  r.  Martinsville  &  Franklin 

R.  Co.  o9,  178 

Brewer  c.  Boston,  Clinton,  &  F.  R.  Co.  317 


Brewer  r.  Boston  Theatre 

Brewster  r.  Hartley  72, 

Brickelt  v.  Morris 

Bridges  v.  Wilts,  Somerset,  &  W.  R. 

Co. 
Bridport  Old  Brewery  Co.,  In  re 
Briggs,  A'jT  parte  130, 

V.  Ferrell 

V.  Taylor  5-32,  .502, 

Brighara  v.  Agricultural  Branch  R. 

Co. 
BriLcbt  c.  Ilutton 
Brightwell  v.  Mallory 
Brisbine  v.  St.  Paul  &  Siou.x  C.  R.  Co. 

British  Provident  L.  Ins.  Co. 
I'ritton  V.  Great  Western  C.  Co. 
Broailbent  v.  Imperial  Gas  Co. 
Broadway  Bank  r.  McKlrath 
Brock  V.  Cotmecticut  &  Passumpsic 

R.  R.  Co. 
Brocket  r.  Ohio  &  Pennsylvania  R. 

Co. 
Brockwall's  Case 

Brooklyn    Central   &   J.    R.    Co.    v. 
Brooklyn  Citv  R.  Co.  321, 

Brooklyn,  Winficld,  &  N.  R.  Co.,  In  re 
Brooks  V.  Buffalo  &  Niagara  F.   R. 
Co. 
V.  Davenport  &  St.  Paul  R.  Co. 
r.  New  York  &  Erie  R.  Co.     487, 
V.  Railway  Co.  455, 

V.  Venice  &  Carondelet  R.  Co. 
Broom  v.  Commonwealth 
Brotherhood,  In  re 

Broughton     i'.     Manchester     Water- 
Works 
!•.  Peiisaeola 
Brown  r.  Atlanta  &  Charlotte  R.  Co. 
V.  Beatty  270, 

V.  Bellows 

I'.  Cayuga  &  Susquehanna  R.  Co. 
343, 
V.  Chadbourne 
r.  Cincinnati 
V.  l)in)lessis 
r.  Illius 

V.  .Maxwell  555, 

V.  Milwaukee  &  St.  Paxil  R.  Co. 
V.  Minneapolis   &   St.    Louis    R. 

Co. 
r.  Overburj' 
V.  Peterson 
V.  Philadeljihia,    Wilmington,   & 

B.  R.  Co. 
V.  Providence    &   Springfield    R. 

Co. 
r.  Providence,  Warren,  &  B.  R. 
Co.  289, 

r.  Scottish  American  M.  Co. 
Browne  r.   Providence,    Hartford,   & 

F.  R.  Co. 
Brownlee  r.  Ohio,  Indiana,  &  I.  R.  Co. 

173, 


015 
159 
i;i2 

387 
70 

097 
038 

585 

411 
l.j 
107 
273, 
302 
005 
502 
289 
152 

510 

410 

2U9 

580 
458 

592 
274 
527 
450 
302 
72 
600 

023 
107 
471 
319 
229 
314. 
058 
333 
271 
829 
314 
571 
584 

604 
447 
20.3 

204 

288 

305 
63 

630 
15S, 
201 


Iviii 


TABLE   OP   CASES. 


Brownlow  i;.  Metropolitan  Board  652 
Brusberg  v.  Milwaukee,  Lalie  S.,  &, 

W.  K.  Co.  473 

Bryan  i-.  Lewis  114 

Bryon  v.  Metropolitan  Saloon  O.  Co.  tJO'J 
Bryson  i;.  Warwick  &  Birniinghaai  C. 

Co.  8 

Buchanan  v.  Logansport,  &c.  llailway 

Co.  223 

Bucliner  v.  Chicago,  Milwaukee,  &  N. 

K.  Co.  317 

Buck  V.  Squiers  320 

Buckeridge  i'.  Ingram  106 

Buckfiekl  Branch  R.  Co.  v.  Irish  163 

Bucknam  v.  Bucknam  320 

Buffalo  V.  IloUoway  679 

Buflklo  &  Allegiiany  R.  Co.  v.  Cary  59 
Buftiilo   &  New   York  C.  R.  Co.  v. 

Dudley  163,  190,  205 

BuflTalo,  Corning,  &  N.  Y.  R.  Co.  v. 

Pottle  197 

Buffum  V.  New  York  &  Boston  R.  Co.  288 
Building  Association  v.  Sendemej'er  143 
Bull  V.  Chapman  16 

I'.  Mobile  &  Montgomery  R.  Co.  563 
Buncombe  Turnpike  Co  v.  IMcCarson  68 
Bundy  v.  Keokuk  &  Des  Moines  R. 

Co.  456 

Bunger  v.  Koop  432 

Burbridge  v.  New  Albany  &  S.  R.  Co.  363 

Burgess  v.  Gray  638,  640 

V.  Great  Western  R.  Co.  650 

Burke  v.  Lechniere  200 

V.  Louisville  &  Nashville  R.  Co.     471 

V.  Smitli  204 

Burkinsliaw  v.  Birmingham  &  Oxford 

J.  R.  Co.  376,  390 

Burlington  &  Missouri  R.  R.  Co.  v. 

Crockett  565 

i;.  Schluntz  273,  288,  349 

V.  Wendt  486,  490 

V.  Westover  472,  474,  481 

V.  White  199 

Burmester  v.  Norris  66 

Burncs  v.  Pennell  137,  138,  603 

Burnet  v.  Bisco  171 

Burnett  v.  Lynch  119,  133, 134 

Burns  r.  Dodge  301 

V.  Milwaukee   &    Mississippi    R. 

Co.        ■  263,  350 

V.  Multnomah  Railway  Co.  281 

Burnside  v.  Union  Steamboat  Co.  475 

Burr  V.  Bucksport  &  Bangor  R.  Co.     293 
V.  Wilco.x  181 

Burrell  v.  Jones  614 

Burritt  r.  New  Haven  317 

Burroughs    v.   Housatonic    Railroad 

Co.  470, 471 

Burrows  v.  ISIarch  Gas  &  C.  Co.  480 

Burt  V.  Farrar  55 

'Bnrtou,  Ex  parte  14 

r.  North  Missouri  R.  Co.  501 

i;.  Fliiladelphia,    Wilmington,    & 

B.  R.  Co.  313,  495,  549 


Burton  v.  Railroad  Co.  692 

Bush's  Case  154 

Busli  r.  Beavan  673,  713 

V.  Steinman  539,  540 

Butcher  i'.  Vaca  Valley  &  C.  L.  R.  Co.  481 
Butler  V.  Hunter  542 

V.  Mehrling  290 

Butnian  v.  Vermont  Central  R.  Co.  308 
Button  V.  American  Tract  S.  61 

Butts  V.  Woods  617 

Buxton  V.  Northeastern  Railway  Co.  500, 

621 


Cabot  &  West  Springfield  B.  Co.  v. 

Chapin  174 

Cadle  V.  Muscatine  Western  R.  Co.      317 
Cadmus  v.  Central  Railroad  Co.  292 

Cahill  V.  Kalamazoo  Insurance  Co.  78 

Cairo  &  Alton  R.  Co.  v.  Smith  282 

Cairo  &  Fulton  R.  Co.  v.  Trout    281,  282, 

389 

V.  Turner  237,  348 

Cairo  &  St.  Louis  R.  Co.  v.  Cauble       466 

V.  Murray  529 

V.  Warrington  505 

V.  Watson  466 

V.  Woolsey  509,  539 

Calder  Navigation  Co.  v.  Pilling        82,  85 

Caledonian  &  Dumbartonshire  J.  R. 

V.  Helensburgh  Harbor  T.  35 

Caledonian  Railway  Co.  v.  Lockhart    402 

V.  Ogilvy  355 

V.  Sprot  314 

V.  Walker  306,  353 

California  Pacific  R.  Co.  f.  Armstrong  383 

V.  Central  Pacific  R.  Co.  296,302,  719 

Callaway  County  v.  Foster  46 

Callender  v.  Marsh  321 

r.  Painesville  &  Hudson  R.  Co.        62 

Cambridge  v.  Charlestown  Branch  R. 

Co.  696 

Camden  v.  Mulford  716 

Camden  &  Amboy  R.  Co.  v.  Briggs    242, 

461 
Camden  Bank  v.  Halls  120 

(-ameron  v.  Charing  Cross  R.  Co.         360 
Campbell  v.  Mesier  613 

Canal  Co.  v.  Archer  272 

r.  Blakemore  410 

Canal  Commis^sioners  v.  People  320 

Canandaigua  &  Niagara  F.  R.  Co.  v. 

Payne  271,  312 

Cape  Sable  Company's  Case  107 

Capper  i\  Lindsey  27 

Card  i:  New  York  &  Harlem  R.  Co.     489 
Cardiff  C.  &  C.  Co.  139 

Cardon  v.  General  Cemetery  Co.  706 

Cardwell  r.  American  Bridge  Co.  335 

Carington  v.  Wvcombe  Railway  Co.  373, 

397 
Carle  v.  Bangor  tS:  Piscataquis  C.  &  R. 
Co.  557,  571 


TABLE   OF   CASES. 


lix 


Carlisle  v.  Cahawba  &  Marion  R.  Co.   170 
Carman   v.    Steubcnville  &  Indiiin- 

apolis  H.  Co.  305,  auO,  640 

Carniiciliael,  A'.r /jfjWe  14 

Carnoclian  v.  Norwich  &  Spalding  U. 

Co.  3U5,  375 

Carolina  Central  R.  Co.  v.  Phillips        201 

Carpenter  r.  Bristol  G'J5,  600 

V.  Bristol  County  C.  284 

V.  Insurance  Co.  127 

Carr  i-.  Georgia  Railroad  &  B.  Co.       242, 

202,  ;i48 
i;.  Royal  Exchange  Ins.  Co.  122 

Carriger  i'.  East  Tennessee,  V.,  &  G. 

R.  Co.  342 

Carroll  i'.  Mullanpliy  Savings  Bank    112 

Carron  l-.  Great  WesU-rn  U.  Co.  344 

Carson  r.  Western  Railroad  Co.  313 

Carter  i-.  Great  Eastern  R.  Co.  375 

Case  V.  Bank  112 

V.  St.  Louis  &  San  F.  R.  Co.  508 

V.  Thompson  298 

Cassidy  v.  Maine  Central  R.  Co.  6G5 

V.  Old  Colony  H.  Co.  238 

Caswell  V.  Chicago  &  Northwestern 

R.  Co.  474 

Catclipole  V.  Ambergate  Railway  Co.     140 
Caterham  Railway  Co.  v.  London  & 

Brigiiton  &  S.  C.  R.  Co.  80 

Cazyer  v.  Taylor  501 

Cecil  V.  Pacific  Railroad  Co.  485 

Cedar  Rapids  &  St.  1'.  R.  Co.  v.  Spaf- 

Ibrd  201 

Central  Branch  U.  P.  R.  Co.  v.  Atchi- 
son, Topeka,  &  S.  F.  R.  Co.  253, 
20(3 
V.  Nichols  505 

V.  Twine  317 

Central  Bridije  Corporation  c  Lowell  203 
Central  City  II.  R.  Co.  v.  Fort  Clark 

H.  R.  Co.  205 

Central  Military  T.  R.  Co.  v.  Rocka- 

fellow  512,  527 

Central  National  Bank  v.  Williston       151 

Central  Ohio  K.  Co.  v.  Lawrence  400 

Central  Plank  Road  Co.  v.  Clemens      107 

Central  Railroad  &  B.  Co.  i'.  Mason     635 

V.  Smith  62 

Central  Railroad  Co.  r.  Brinson  585 

V.  Bunn  105 

V.  (ireen  101 

r.  llitlield  225 

Central  Railway  Co.  v.  Kisch  210 

V.  Rich  184 

Central  Turnpike  Co.  i'.  Valentine  104, 158 

Centre  Turnpike  Co.  r.  Smith  450 

Chailsey  v.  McCreerv  52 

Chaffee  v.  Hutland  Railroad  Co.  208 

Challis  ('.  Atchison,  Topeka,  &  S.  R. 

Co.  200 

Chamberlain  v.  Painesville  &  Hudson 

R.  Co.  75,  171 

V.  West  End  of  L.  &  C.  P.  R.  Co. 

354,  357 


Chambers  v.  Cincinnati  Railroad  Co. 

245,  298 
V.  London,  Chatham,  &  D.  R.  Co.    371 
J'.  Manchester  &,  Milford  R.  Co.     004 
Champion  i-.  Memphis  &  Charleston 

R.  Co.  107,  411 

Champlain  &  St.  Lawrence  R.  Co.  v. 

Valentine  3;]4 

Cham[)lin  v.  Pendleton  320 

Chandler  r.  Broughton  540 

Chapin  v.  Boston  v*i  Providence  R.  Co.  287 

V.  Sullivan  Railroad  Co.  250,  520 

V.  Vermont  &  Massachusetts  R. 

Co.  121 

Chapman  v.  Albany  &  Schenectady 

R.  Co.  313,  310,  .323 

V.  Atlantic  &  St.  Lawrence  R.  Co.  476 
V.  Mad  River  &  L.  E.  R   Co.  175 

V.  Monmouthsiiire  Railway  Co.      302 
V.  Osiikosli  &.  Mississippi  R.   R. 

Co.  270,  312 

Chappie's  Case  154,  101 

Charitable  Corporation  v.  Sutton  020 

Charles    River    Bridge    v.    Warren 

Bridge  01,  242,  207 

Charles  River  R.  Co.  v.  Norfolk  County 

C.  367 

Charlestown  Branch  R.  Co.  v.  Mid- 
dlesex County  C.  299 
Charlotte  &.  South  Carolina  R.  Co.  v. 
Blakely                                         162,  180 


Chase  v.  New  York  Central  R.  Co. 


307 

402 

344 

320 

128 


Chasemore  v.  Richards 

Chatham  v.  Brainerd 

Clieale  v.  Kenward 

Cheenev  v.  Lafayette,  Bloomington, 

&  M.'R.  Co.  618 

Cheever  r.  Gilbert  Elevated  R.  Co.       023 
I'.  Meyer  152 

Chcltenimm  &  Great  Western  U.  R. 

Co.  V.  Daniel  8,  110,  180 

V.  Medina  1^0 

Chenango  Bank  v.  Brown  45 

Cheney  v.  Boston  «&.  Maine  R.  Co.  03 

Cherry  v.  North  ^<:  South  R.  Co.  455 

Chesapeake  &  Ohio  C.  Co.  r.  Balti- 
more v^  Ohio  R.  Co.  200 
Chesapeake  &  Ohio  R.  Co.  v.  Bradford  205 
V.  Patton  274 
Chester  Glass  Co.  v.  Dewey           111,  100 
Chestnut  Hill  T.  Co.  r.  Ru'tter              543 
Chicago  &  Alton  R.  Co.  v.  Engle          409 
I'.  Gretzner                                       689 
r.  Henderson                                    491 
1-.  Keefe                                            5(53 
V.  Killain                                          400 
V.  Mailer                                             345 
r.  Mav                                                 656 
V.  McDanicls                                      491 
V.  McMorrow                                     604 
!'.  Pennell                                              474 
V.  Roberts                                         85.  98 
c.  Saunders                                         608 


Ix 


TABLE   OP   CASES. 


Chicago  &  Alton  R.  Co.  v.  Smith  281,  472 
r.  Sullivan  574 

v.  Utley  480,  525 

Cliicago  &  Eastern  I.  R.  Co.  v.  Flex- 
man  544 
V.  Hall                                              274 
V.  Hedges  585 

Chicago  &  Evanston  R.  Co.  v.  Blake    270 
V.  Dresel  274 

V.  Jacobs  272 

Chicago  &  Iowa  R.  Co.  v.  Davis  38:] 

V.  Hopkins  245,  304 

Chicago  &  Mexican  C.  R.  Co.  v.  Ritter  271 

Cliicago  &  Milwaukee  R.  Co.  i'.  Bull    291 

Chicago  &  Mississippi  R.  Co.  v.  Patchin 

261,  496,  512,  514 

Chicago  &  Northeastern  R.  Co.   v. 

Miller  588 

V.  Sturgis  457 

Chicago  &   Northwestern   R.  Co.  v. 

Genesee  Circuit  J.  698 

V.  Morantla  505 

V.  Peacock  85,  98 

V.  Sinionson  473 

v.  Williams  lOlJ 

Chicago  &  Pacific  R.  Co.  v.  Francis      322 
V.  Stein  271 

Chicago  &  Rock  Island  R.  Co.  v.  Still  592 
V.  Ward  511 

Chicago  &  Southwestern  R.  Co.  v. 
Swinney  228 

Chicago  &  Tomah  R.  Co.  v.  Simmons    564 

Chicago  &  Vincennes  R.  Co.  v.  People  318 

Chicago  &  Western  I.  R.  Co.  v.  Ayres  317 
V.  Berg  317,  318 

t'.  Dunbar  2-53 

V.  Englewood  Connecting  R.  Co.   266 
V.  George  317 

V.  Pliillips  317 

V.  Prussing  295 

Chicago,  Pnirlington  &  Q,  R.  Co.  v. 

Bradfield  490 

V.  Cauffman  503 

r.  Coleman  620 

V.  Harwood  584 

V,  Houch  496 

V.  Lee  586 

V.  McGinnis  318 

V.  Parks  85,  97,  99 

V.  Wilson  251,  695 

Chicago,  Danville  &  V.  R.  Co.  v,  St. 
Anne  690 

Chicago,  Milwaukee,  &  St.  P.  R.  Co. 
V.  Ross  565 

Chicago,   Newton,    &    S.   R.   Co.   v. 
Newton  318 

Chicago,  Rock  Island,  &  P.  R.  Co.       333 
V.  Bell  588 

r.  Carey  342,  344 

V.  Doyle  558 

V.  Henry  565 

V.  Lake  237 

r.  Moffitt  344 

V.  People  253 


Chicago,  St.  Louis  &  N.  O.  R.  Co.  v. 

Doyle  563 

V.  Janrett  505 

V.  Jones  490 

Child  V.  Coffin  110 

V.  Hudson  Bay  Co.  82,  83 

Childs  V.  New  Haven  &  Northampton 

R.  Co.  286,  295 

r.  Somerset  &  Kennebec  R.  Co.    430, 

452 
Chilton  V.  London  &  Croydon  R.  Co.  84,  91 
Chinnock, /ix  7*fn-;e  154 

Chohan  Insurance  Co.  v.  Holmes  76 

Choteau  Insurance  Co.  v.  Floyd  184 

Chouteau  Spring  Co.  v.  Harris  110 

Christian  Union  ?'.  Yount  47 

Church  V.  Imperial  Gas  L.  &  C.  Co.      644 
V.  Northern  Central  R.  Co.  284 

Cincinnati  v.  Stone  638 

Cincinnati  &  Spring  G.  A.  R.  Co.  v. 

Cumminsville  328 

Cincinnati   &  Springfield   R.   Co.  v. 

Longworth  272,  273 

Cincinnati  College  v.  State  242 

Cincinnati,  Hamilton,  &  1).  R.  Co.  v. 

Street  492 

Cincinnati,  Hamilton,  &  I.  R.  Co.  v. 

Bartlett  485 

V.  Ridge  532 

V.  Waterson  488 

Cincinnati,  Indiana,  &  C.  R.  Co.  v. 

Clarkson  205 

Cincinnati,  Lafayette,  &  C.  R.  Co.  v. 

Ducharme  496 

Cincinnati,  Wilmington,  &  Z.  R.  Co. 

V.  Clinton  Countv  C.  2.34 

City  Bank  r.  Bartlett  184 

Citv   Insurance   Co.   v.   Commercial 

Bank  167 

Claflin  V.  Wilcox  548 

Clarence  Railway  Co.  i".  Great  North 

of  E.  R.  Co.  221,  241,  265 

Clark's  Case  83 

Clark  V.  Boston,  Concord,  &  M.  R. 

Co.  347 

V.  Cuckfield  Union  645 

V.  Monongahela  Navigation  Co.     186 
V.  Syracuse  2.34 

V.  Syracuse  &  Utica  R.  Co.    488,  490, 
513,  527 
V.  Vermont  &  Canada  R.  Co.  273,  516 
V.  White  454 

Clarke,  E.r  parte  14 

I'.  Dickson  136,  137 

V.  Imperial  Gas  L.  Co.  617,  623 

f.  Leicestershire  &  Northampton- 
shire U.  C.  695,  702 
V.  Manchester,  Sheffield,  &  L.  R. 

Co.  280 

V.  Rochester,  Lockport,  &  N.  F. 

R.  Co.  515 

Clarkson  v.  Hudson  River  R.  Co.  294 

Clary  v.  Hoagland  710,  718 

Clay  V.  Ruflbrd  604 


TABLE   OP   CASES. 


IXl 


Clayton  v.  Carey  709 

Clearwater  v.  Meredith  65 

Cleaver  v.  Common  wealth  7-1 

Cleghorn  v.  New  York  Central  &  II. 

K.  K.  Co.  574 

Clement  v.  Canfield  514,  Ci" 

I'.  Lotlirop  51 

Cleveland  &  Pittsburg  R.  Co.,  In  re      205 
V.  Ball  287,  288,  290 

V.  Kellcy  452 

V.  Speer  312,  458 

Cleveland  &  Toledo  R.  Co.  v.  Pren- 
tice 285 
Cleveland,  Columbus,  &  C.  R.  Co.  v. 

Elliott  488,  514 

V.  Keary  564,  572 

V.  Terry  102 

Cleveland  Iron  Co.  v.  Stephenson         611 

Cleveland,  Painesville,  &  A.  R.  Co. 

V.  Erie  58,  069 

Cleveland  Railroad  Co.  v.  Bartram        95 
t;.  Brown  520 

I'.  Newbrander  509 

Cliff  V.  Midland  Railway  Co.  587 

Clipper  V.  Logan  601 

Clive  i;.  Clive  147 

Clowes  V.  Staffordshire  Potteries  W. 

W.  Co.  345 

Coale  V.  Hannibal  &,  St.  Joseph  R. 

Co.  471,  473 

Coates  V.  New  York  234 

Cobb  V.  Mid  Wales  Railway  Co.  373 

Cockhurn,  Ji.r  pdiie  110 

V.  Union  IJank  G07 

Cockerell  c.  Van  Diemcn's  Land  Co.    212 
Coddington  v.  Brooklyn  Cross  T.  R. 

Co.  584 

Cody  V.  Central  Pacific  R.  Co.  93 

Coe  V.  New  Jersey  ^lidlaud  II.  Co,      283, 

455 

V.  Wise  052 

Coffin  v.  Collins  61,  70 

Coggs  v.  Bernard  020 

Cogswell  i\  New  York,  New  Haven, 

&  H.  R.  Co.  304,  359 

Coil  V.  Pittsburgh  Female  C.  59 

Colcock  V.  Louisville  Railroad  Co.  432 
Colcough  t'.  Nashville  &  North- 
western R.  Co.  286,  314,  349 
Cole  V.  Crystal  Palace  R.  Co.  371 
I'.  Dyer  725 
Co\emnn,  Ex  parte  142 
Coles  I'.  Bristowe  115,  123 
Colgan  V.  Allegheny  Valley  R.  Co.     245, 

298 
Collins  V.  Blantern  621 

V.  New  York  Central  &  II.  R.  R. 

Co.  472,  474 

r.  South  Staffordshire  R.  Co.  400 

Collinson  v.  Newcastle  &  Darlington 

R.  Co.  303 

Coluian  V.  Eastern  Counties  R.  Co.      194, 

240,  000,  059 

Colon  I'.  Eastern  Railroad  Co.  641 


Colonial  Life  A.  Co.  v.  Uoinc  &  Col- 
onial L.  A.  Co.  52 
Colt  /•.  Roberts  711 
Columbia  Bank  v.  Patterson  429 
Columbia  Insurance  Co.  i-.  Lawrence  476 
V.  Wheelright  714 
Columbine  v.  Cliicliester  129 
Columbus  &  Indianapolis  C.  R.  Co. 

V.  Arnold  557,  611 

Columbus  &  Shelby  R.  Co.  v.  Watson  510 
Columbus,  Chicago,  &  L  C.  R.  Co.  v. 

Troesch  500 

Columbus,  Piqua,  &  I.  R.  Co.  i-.  In- 
dianapolis &  B.  R.  Co.     640,  069 
V.  Simpson  272,  287 

ColviU  V.  St.  Paul  &  Chicago  R.  Co.     309 
Colvin  r.  Turnpike  Co.  194 

Conmiercial  Bank  v.  Kortright  112 

Commonwealth  c.  Alger  336 

r.  AUegiiany  Commissioners  714 

V.  Arrison  710,  723 

I'.  Boston  &  Maine  R.  Co.      291,  337. 

381 
V.  Boston  &  Worcester  R.  Co.  597 
V.  Canal  Commissioners  78 

V.  Clarkson  436,  437 

V.  Commercial  Bank  721 

V.  Commissioners  076 

V.  Cullen  194 

V.  Delaware  &  Hudson  C.  Co.         722 
V.  Erie  &  Northeast  R.  Co.     242,  325, 

411 
V.  Farmers'  Bank  724 

r.  Fisher  300,  321 

V.  Fitchburg  Railroad  Co.      406,  409, 

411 
I'.  German  Society  711 

V.  Hartford  &  New  Haven  R.  Co.  420 
V.  Haverhill  421 

V.  Lancaster  1(19 

V.  Morris  59 

v.  Pennsylvania  Benevolent  I.        711 
I.'.  Perkins  O'.tt 

V.  Pliiladelphia  076 

V.  Philanthropic  Society  711 

V.  Pluvnix  Iron  Co.  213 

V.  Pittsburg  674,  694 

V.  Power  87  86,  91 

V.  Ritcher  236 

V.  Koxbury  336 

V.  St.  Mary's  Church  74 

V.  St.  Patrick  Benevolent  S.  710 

f.  Scllow  679 

V.  Simpson  716 

I'.  Smith  723 

V.  Towksburv  234 

i;.  Union  Fire  &  M.  Ins.  Co.   710,  723 
V.  West  Chester  R.  Co.  57 

Commonwealth  Bank  i.  Curry  120 

V.  .McChord  120 

Compton   I'.    Susquehanna    Railroad 

Co.  24.".,  300 

Comstock  V.  Des  iloincs  Valley  R. 
Co.  622 


Ixii 


TABLE   OF    CASES. 


Concord  Railroad  Co.  v.  Clough 

V.  Greeley  271,  287,  290, 

Congdon  i'.  Central  Vermont  R.  Co. 
Conger  v.  Burlington  &  Southwestern 
R.  Co.  382, 

Congor  V.  Galena  &  Chicago  U.  R.  Co. 
Connable  v.  Chicago,  Milwaukee  & 

St.  P.  R.  Co. 
Connecticut  &  Passumpsic  R.  R.  Co.  v. 
Bailey  157, 162,  195, 

V.  Baxter 
r.  Ilolton 
Connecticut  Fire  Ins.  Co.  v.  Erie  Rail- 
way Co. 
Connecticut  River  R.  Co.  v.  Clapp 

V.  Franklin  County  C. 
Connop  V.  Levy 
Conro  V.  Port  Henry  Iron  Co. 
Conservators  of  the  Tone  v.  Ash 
Consolidated  Channel  Co.  v.  Central 

Pacific  R.  Co. 
Contoocook  Valley  R.  Co.  v.  Barker 
Conway  r.  Belfast  &  Northern  C.  R. 
Co. 
V.  McGregor  &  Missouri  R.  R.  Co. 
Con  well  V.  Springfield  &  Northwestern 

R.  Co. 
Conybeare  v.  New  Brunswick  &  Can- 
ada R.  &  L.  Co.  1.37, 
Cook  r.  Burlington                          318, 
V.  Champlain  Transportation  Co. 
V.  Milwaukee  &  St.  Paul  R.  Co. 


V.  Parham 
Cooke  V.  Boston  &  Lowell  R.  Co. 

V.  Ox  ley 
Cooling,  In  re 

V.  Great  Northern  R.  Co. 
Coomb  V.  New  Bedford  C.  Co. 
Coon  V.  Syracuse  &  Utica  R.  Co. 


417 
170, 


555, 
571, 


Coope  V.  Eyre 

Cooper  V.  Central  Railroad  Co. 

V.  London,  Brighton,  &  S.  C.  R. 
Co. 

V.  Milwaukee  &  Prairie  du  C.  R. 
Co. 
Cope  V.  Thames  Haven  D.  &  R.  Co. 
Copeland  v.  Copeland 

V.  Northeastern  Railway  Co. 
Copper  Miners  v.  Fox  6i4, 

Coppin  V.  Braithwaite 
Corby  v.  Hill 
Corey  v.  Buffalo,  Coming,  &  N.  Y.  R. 

Co. 
Cork  &  Banilon  R.  Co.  v.  Cazenove 

V.  Goode 
Cork  &  Youghal  R.  Co.,  In  re 

V.  Patterson 
Cornwall  v.  Sullivan  Railroad  Co. 
Cornwall  Great  C.  M.  Co.  i'.  Bennett 
Corpe  V.  Glyn 
Corrigal  v.  London  &  Blackwall  R.  Co. 


554 
840 
529 

383 
532 

296 

201 
173 
255 

475 

279 

298 

15 

74 

46 

253 
175 

564 

291 

227 

C09 
340 
473 
509, 
637 
667 
581 
201 
357 
357 
559 
562, 
572 
44 
500 

98 

503 
645 
107 
117 
646 
96 
223 

325 
189 
190 
609 
193 
527 
165 
705 
697. 
704 


Corry  v.  Great  Western  R.  Co.  532 

Cort  V.  Ambergate,  Nottingham,  B. 

&  E.  J.  R.  Co.  432 

Corwin  v.  New  York  &  Erie  R.  Co.      494 
Cosby  V.  Owensboro  &  Russell ville  R. 

Co.  316,  317 

Coster  V.  New  Jersey  R.  &  T.  Co.        294 
V.  New  Jersey  R.  Co.  260 

Costigan  v.  Mohawk  &,  Hudson  R.  Co.  631 
Cotheal  v.  Brovver  213 

Cother  v.  Midland  Railway  Co.     251,  408 
Cott  r.  Lewiston  Railroad  Co.  345 

Couch  V.  Steele  507 

Cousins  V.  Hannibal  &  St.  Joseph  R. 

Co.  502 

Cowell  V.  Buckelew  714 

V.  Burlington,  Cedar  R.,  &  M.  R. 
Co.  490 

Cowles  V.  Richmond  &  Danville  R. 

Co.  556 

Cox  V.  Louisville,  New  A.,  &  C.  R. 

Co.  302,  316,  389 

Coy  V.  Utica  &  Schenectady  R.  Co.    497, 

498 
Cozens  v.  Bognor  Railway  Co.  246,  386 
Cracknell  v.  Thetford  314 

Craig  V.  New  York,  New  Haven,  &. 

H.  R.  Co.  588 

V.  Rochester  City  &  B.  R.  Co.  326,  327 
Cram  v.  Bangor  House  78 

Crapton  v.  Hannibal  &  St.  Joseph  R. 

Co.  499 

Crawford  v.  Chester  &  Holyhead  R. 

Co.  408 

V.  Delawne  328 

V.  New  York  Central  &  H.  R.  R. 

Co.  519 

V.  Valley  Railroad  Co.  295 

Crawfordsville  R.  Co.  v.  Wright  549 

Credit  Valley  R.  Co.  v.  Spragge  271 

Creed  r.  Lancaster  Bank  105 

Cresson  v.  Philadelphia  &  Reading  R. 

Co.  98 

Crist  I'.  Erie  Railway  Co.  473 

Crittenden  c.  Wilson  348 

Crocker  v.  Crane  56,  57,  188,  293 

V.  New  London,  Willimantic,  &  P. 

R.  Co.  97,  548 

V.  Old  South  Church  699 

Croffe  V.  Smith  717 

Croft  V.  Allison  644 

V.  London  &  Northwestern  R.  Co.  359 

Croniford  &  High  Peak  R.  Co.  v.  Lacey  180, 

186 
V.  Stockport,  Disley,  &  W.  B.  R. 

Co.  25 

Cromford  Canal  Co.  v.  Cutts  358 

Crosby  v.  Detroit,  Grand  H.,  &  M.  R. 

Co.  509 

I'.  Hanover  254,  264,  269 

Croskey  v.  Wales  Bank  13 

Cross  V.  Mill  Co.  163 

V.  Sackett  135 

Crouch  V.  Great  Northern  R.  Co.  460 


TABLE   OP   CASES. 


Ixiii 


Crouch  V.  London  &  Northwestern  R. 

Co.  4C0 

Cruder  ;•.  Hudson  River  R.  Co.  2'J4 

Crutclifield  v.  Richmond  &  Danville 

R.  Co.  5G0 

Cuddehack  v.  Jewctt  677 

Cullmne  r.  New  York  Central  &  II. 

R.  11.  Co.  491 

Cullen  v.  Thompson  610 

Cully  (•    IJfiltimore  &  Ohio  R.  Co.  101 

CumhiTlaiid  &  Pennsylvania  R.  Co. 

V   Pennsylvania  R.  Co.  264 

Cumberland  Coal  Co.  v.  Sherman  551 

Cumberland  Valley  R.  Co.  v.  Baab  27  171 
V    Iluj^hs  (jo2 

Cummins;  i\  I'rescott  72,  80,  147 

Cunliir  r.  Manchester  &  Bolton  C.  Co.     6G 
Cunningham  v.  Edgefield  &  Kentucky 

R.  Co.  173 

V.  Evansville  &  Terre  Haute  R. 

Co.  475 

V.  International  Railroad  Co.  5o'J 

V.  Rome  Railroad  Co.  3(J0 

Curran  r.  Arkansas  1G7 

Currier  c.  Boston  &  Maine  R.  Co.         290 

V.  Lowell  579 

V.  Marietta  &  Cincinnati  R.  Co.     239 

Curry  v.  Chicago  &  Northwestern  R. 

Co.  480,  496,  509 

Curtis  V.  Eastern  Railroad  Co.  345 

V.  Leavitt  621 

V.  St.  Paul,  Stillwater,  &  T.  F.  R. 

Co.  253,  288,  295 

y.  Vermont  Central  R.  Co.     285,511 

Cushman  r.  Smith  247,  276,  297,  298 

Cutbill  V.  Kingdom  G9 

Cutler  V.  Middlesex  Factory  Co.  160 


D. 


Dalton  V.  Midland  Railway  Co.  141 

Daly  V.  Thompson  9 

Dana  v.  New  York  Central  &  II.  R.  R. 

Co.  563 

r.  United  States  Bank  74 

Danbury  &  Norwalk  R.  Co.  i*.  Nor- 

walk  421 

V.  Wilson   161,  163,  189,  194,  196,  200 
Dance  v.  Girdler  12,  22 

Dand  i'.  Kingscoto  2 

Dan  forth  c.  Smith  395 

Danifl  Ball.  The  3.;4 

Danncr  r.  South  Carolina  R.  Co.  404 

Danville   &  White  L.   P.   R.  Co.  v. 

State  721,  725 

Danville,   Ilazleton,  &  W.  R.   Co.  v. 

Gearhart  272 

V.  State  318 

Darling  v.  Boston  &  Albany  R.  Co.      48G 

V.  Neill  716 

Darnley  v.  London,  Chatham,  &  D.  H. 

Co.  280,  516 


Darrigan  i'  New   York  &,  New  E.  R. 

Co.  555,  563 

Dart  V.  Houston  •  C9'J 

Dartmouth  &  Torbay  R  Co.,  In  re        .30 
Dartmouth  College  v.  Woodward     43,  47, 

Gl,  2GG 
Dascomb  v.  Buffalo  &  State  L.  R.  Co.  5bG, 

689 
Dater  v.  Troy  Turnpike  &  R.  Co.  543 

Dauchy  v.  Brown  110 

Davenport  &,  Northwestern  R.  Co.  v. 

Renwick  3:;3 

Davidson  v.  Boston  &  Maine  R.  Co.     2.3G. 

284.  299,  .300,  337,  4fHi 

t'.  Michigan  Central  R.  Co.  525 

V.  Tulloch  135,  1.37,  614 

Davies  v.  St.  Louis,  Kansas  City,  & 

N.  R.  Co.  220 

Davis  V.  Bank  of  England  142 

V.  Burlington  &  Missouri  R.  R.  Co.  518 

v.  Charles  River  B.  R.  Co       282,  284 

V.  Chicago    &    Northwestern   R. 

Co.  317 

V.  Chicago,  Rock  T.,  &  P.  R.  Co.     503 

V.  Detroit  &  Michigan  R.  Co.  559 

f.  East  Tennessee  &  (J.  R.  Co.        246 

V.  La  Crosse  &  Milwaukee  R.  Co   350 

V.  Lamoille  County  P.  R.  052 

V.  Leominster  579 

V  London  &  Blackwall  R.  Co.        350 

V.  Lowell  Meeting  House  82 

V.  Old  Colony  R.Co.  GOG 

V.  Providence  &  Worcester  R.  Co.  46S 

r.  Russell  301 

r.  San  Lorenzo  Railroad  Co.  302 

Davison  v  Sevmour  625 

Dawson  v.  Midland  Railway  Co.   486,  527 

Day  V.  Day  148 

V.  Newark  India  R.  Co.  47 

V.  Owen  8.3,  86 

Dayton  v.  Borst  161,  168 

Dayton  Railroail  Co.  r.  Lawton  302 

D'Arcy  r.  Tamiir,  Kcthill,&C.  R.  Co.     79 

De  Grave  r.  Mi)nmouth  046 

De  Pass's  Case  154 

De  Varaigne  r.  Fox  260 

De  Wint  r.  Wiltie  512 

Dean  r.  Chicago  &,  Northwestern  R. 

Co.  505 

I'.  Sullivan  Railroad  Co.  257,  259,  349, 

513 
Dearborn  v.  Boston,  Concord,  &M.  R. 

Co.  44,  273,  .305 

Decatur  County  C.  r.  State  (VM 

Degg  r.  Miilhind  Haihvay  Co.        557,  571 
Delaware  &  Atlantic  U.  Co.  v.  Irick     191, 

2(X) 


Delaware  &  Hudson  C.  Co.  v.  Law- 

rence 

3tl 

V.  Whitehall 

417 

Delaware  Canal  Co.  v.  Sansom 

102 

Delaware.  Lackawann.i,  &  W.  R.  Co. 

v.  Salmon                          472 

474 

r.  TolTcy 

684 

Ixiv 


TABLE   OP   CASES. 


Delaware  Railroad  C.  Co.  v.  Daven- 
port &  St.  Taul  R.  Co. 
Delzell  V.  Indianapolis  &  Cincinnati 

R.  Co. 
Denny  v  Northwestern  Christian  Uni- 
versity 
r.  Trapnell 
Denton  r  Livingston 

V.  Macniel 
Denver  &  Rio  Grande  R.  Co.  v.  Olson 
Deposit  &  General  L.  A.  Co   v.  Ays- 
cough 
Derby  v.  Philadelphia  &  Reading  R. 

Co. 
Despatch  Line  v.  Bellamy  Manufac- 
turing Co. 
Detroit,  Eel  River,  &  I.  R.  Co.  v.  Ben- 
ton 
Detroit,    Hillsdale,   &    I.   R.   Co.   v. 
Forbes  222, 

Detroit,  Monroe,  &  T.  R.  Co.  v.  De- 
troit 
Detroit  Western  T.  &  J.  R.  Co.  v. 
Backus 
V.  Crane  292, 

Deveau.\',  In  re 

Devlin  v.  Second  Avenue  R.  Co. 
Devoe  v.  Penrose  Perry  B.  Co. 
Dewers  r.  Pike 
Dick  V.  Railroad  Co. 
Diedrichs  v.  Northwestern  Union  R. 
Co.  288,  3.33, 

Dietrich  v.  Pennsylvania  Railway  Co 
Dietrichs  v.  Lincoln  &  Northwestern 
R.  Co.  253,  283,  28G, 

Diggle   V.  London   &  Blackwall    R. 
Co  429, 

Dillingham  v   Snow 
Dillon  V.  Union  Pacific  R.  Co. 
Dimick  v.  Brooks 

Direct  Shrewsbury  &  L.  R.  Co.,  In  re 
Directors  ot  Poor  v  Railroad  Co.  284, 
Ditchett  V.  Spuyten  Duyvil  &  P    M. 

R.  Co. 
Dixon  V  Baltimore  &  Potomac  R.  Co 

V  Ranken 
Doane  v.  Scannell 
Dobbin  v   Richmond  &  Danville  R. 

Co. 
Dobson,  Ex  parte 
Dodd  V.  Salisbury  &  Yeovil  R.  Co. 


Dodge  V  Burns 

V.  County  Commissioners       305, 
Doe  V  Beebe 

V.  Georgia  Railroad  &  B.  Co. 
Domestic  and  Foreign  M.  S.  A. 
Donald  v.  St.  Louis,  Kansas  C.  &  X. 

R.  Co. 
Donaldson  v.  Fuller 

V.  Gillot 
Donnaher  v.  Mississippi  43, 

Donnigon  v.  Chicago  &  Northwestern 
R.  Co. 


455 
577 
IGO 

7rj 

107 

15 

4U9 

189 

543 

74 

492 

227 

295 

719 
294 
46 
443 
336 
614 
505 

383 
94 

362 

645 

46 
556 
293 
163 

285 

637 
317 
505 
724 

550 
121 
252, 
408 
2(53 
30(J 
235 
302 
51 

882 
032 
143 
234 

515 


Doo  V.  London  &  Croydon  R.  Co.   25,  376 
Dorian  v.  East  Brandywine  &  W.  R. 

Co.  273, 288 

Doubleday  v.  Muskett  1 1 

Doughty  V.  Atlantic  &  North  C.  R. 

Co.  341 

V.  Somerville  &  Easton  R.  Co.      245, 

281 
Dovaston  v.  Payne  258,  320,  526 

Dover  &  Deal  R.,  Ex  parte  Mowatt         14 
Dover  Harbor  v   London,  Chatham, 

&  D.  R.  Co.  280 

Dowell  V.  Vicksburg  &  Meridian  R. 

Co.  561 

Downer  v.  Zanesville  Bank  111 

Downie  v.  White  157 

Downing  v.  Chicago,  Rock  I.,  &  P. 

R.  Co.  484,  509 

V.  Mount  Washington  R.  Co.         552 
Downton, /s.r  ^)a(Ve  698 

Downs  V.  New  York  &  New  Haven 

R.  Co.  94 

Doyle  V.  Mizner  76,  77 

Drake  v.  Hudson  River  R.  Co.     299,  319. 

323 
V.  Philadelphia  &  Erie  R.  Co. 
Draper  v.  Gordon 

673 


Noteware 
V.  Williams 
Dreher    i'.    Iowa 

Co. 
Drew  V.  New  River  Co. 

V.  Sixth  Avenue  R.  Co. 
Druid,  Case  of  the 
Drummond,  Ex  parte 
Drury  v  Midland  Railroad  Co. 


528 
130 
713 
222 
Southwestern    R. 

274,  286 
577 
552 
547 
155 
297,  307, 
355 
106 


Drybutter  v.  Bartholomew 

Du  Bois  V.  Delaware  &  Hudson  C. 

Co.  434, 437 

Du  Laurans  v.  Pacific  Railroad  Co.      100 
DubUn  &  Drogheda  R.  Co.  v.  Navan 

&  Kingscour't  R.  Co.  265 

Dublin  &  Wicklow  R.  Co.  v.  Black      189 

Duck  River  V.  R.  Co.  v.  Cochrane       348 

Dudden  v  Union  314 

Dudley  v.  Kentucky  High  School  03 

Duke  V.  Cahawba  Navigation  Co.  58 

Dun  V.  Charleston  347 

Duncan  v  Chamberlayne  147 

V.  Hodges  120 

V  Luntley  109 

V.  Railroad  Co.  565 

Duncomb  r.  New  York,  Housatonic, 

&  N.  R.  Co.  624,  628 

Duncuft  V  Albrecht         106,  127,  128,  129 
Dundalk  Western  R.  Co.  v.  Tapster    697 
Dunham  v.  Monumental  Silver  AL  Co.  141 
V.  Troy  Union  R,  Co.  603 

V.  Rochester  238 

Dunlap  V.  Toledo,  Ann  Arbor,  &  G. 

T.  R.  Co.  294,  296  350,  718,  719 

Dunn  V.  Charleston  221 

V.  North  Missouri  R.  Co.  455 


TABLE   OF   CASES. 


Ixv 


Dunstan  v.  Imperial  Gas  L.  Co.     429,  G17 
Dupoiit  V.  Nui  tlieni  racific  11.  Co.  OG 

Durfee  r.  Old  Colony  &  F.  11.  U.  Co.    6«;J 
V.  Old  (Joioiiy  Kailroad  Co.  O.'J 

Durgin  v.  Munsoii  57o 

Duriiaiu  v.  Wilmington  &  Weldon  R. 

Co.  485 

Duriiam    &    Sunderland    R.    Co.    v. 

Walker  2 

Durkee  v.  Vermont  Central  R.  Co.        12(5 
Dutchess  Cotton  M.  Co.  v.  Davis  1(">1 

Duverijicr  v.  Fellows  108 

Du.xbury  v.  Vermont  Central  R.  Co.     £)80 
Duynies  v.  Chicago  &  Northwestern 

R.  Co.  272 

Dyer  r.  Erie  Railway  Co.  588 

r.  Jones  401 

V.  Walker  50 

Dyncn  v.  Leach  559 


E. 

Eagle,  The  334 

Eagle  V.  Charing  Cross  R.  Co.  358 

Eakin  v.  Raiib  299 

Eakright  v.  Logansport  &  Northern  I. 

R.  Co.  58,  145.  172 

Eales  V.  Cumberland   Black  L.  M. 

Co.  11 

Eames  v.  Boston  &  Worcester  R.  Co.    524 

V.  Salem  &  Lowell  R.  Co.        480,  5:25 

Earle  r.  Mall,  539 

East  &  West  L,  D.,  &  B.  J.  R.  Co.  v. 

Gattke  314,  348,  353,  301,  705 

East  Anglian  R.  Co.  v.  Eastern  Coun- 
ties K.  Co.  2G.  194,  6G2 
East   Brandy  wine   &   W.   R.   Co.   v. 

Ranck  272,  286 

East  Lancasliire  R.  Co.  v.  Ilattersley    445 
V.   Lancasliire   &   Yorkshire    R. 

Co.  630. 

East  Line  &  R.  R.  R.  Co.  v.  Garrett  222 
East  London  W.  W.  Co  v.  Bailey  21 

East  Pascagoula  Hotel  Co.  v.  West  57, 

105 
East  Pennsylvania  R.  Co.  v.  Iliester,   288 
I'.  Ilottenstine  288 

East   Saginaw   &   St.   C.    R.   Co.  v. 

Benham  282,  20f. 

East  Tennessee  &  G.  R.  Co.  v.  St.  John  503 
East  Tennessee  R.  Co.  v.  Burnett  295 
East  Tennessee,  V.,  &  G.  R.  Co.  v. 

B.ivliss  485 

V.  Diillield  GGl 

t'.  Scales  485 

V.  Selccr  485 

V.  White  681 

East  Wheal  Martha  M.  Co.  In  re  142,  609, 

700 
Easter  v.  Little  Miami  R.  Co.  5.31 

Eastern   Counties   Railway   Co.,  Ex 

finite  385 

V.  Broom  90 


Eastham  v.  Blackburn  R.  Co.  204 

Eastwood  I'.  Bain  GOO 

Eaton  V.  Aspinwall  185 

V.  Moston,  (^)ncord,  &  M.  R.  Co.   352 

V.  European  &,   JS'orlh  American 

R.  Co.  3UG,  318,  542 

Eekert  r.  J>ong  Island  R.  Co.  586 

ICdgerly  r.  Enierson  78 

Edgerton  v.  New  York  &  New  Haven 

R.  Co.  508 

Edgewood  Railroad  Go's  Appeal  2.'j3 

Edinburgh  &  Dundee  H.  Co.  r.  Leven  37G 
Edinburgh    &    Glasgow    R.    Co.    v. 

Stirling 
Edinburgh,    Leith,    &   N.    R. 

liebblewhite 
E<linburgh,    Tertli,    &    1).   R. 

Philip 
Edmundson,  In  re 
Edwards  v.  Grand  Junction  R. 


V.  Great  Western  R.  Co. 


058 
Co.   I). 

1G3,  211 
Co.    r. 

28,  36 
717 
Co.  17,  20, 
35 

4(;o 


!'.  London  &  Northwestern  R.  Co.   OG 

r.  Lowndes  705 

1-.  Union  Bank  544 

Egbert  r.  Brooks  130 

Elirenfi  Idt's  Ai)y)eal  70 

Eilert  v.  Green  Bay  &  M.  R.  Co.  688 

Elder  i-.  Bemis  639 

Elderton  v.  Emmens  &a 

Electric  Telegraph  Co.,  In  re  155 

V.  Bunn  154 

Eliason  v.  Coleman  723 

Eliott,  /n  re  400 

Elizabethtown  &  Paducah  R.  Co.  v. 

Combs  317 

r.  Thompson  316 
Elizabethtown,  Lexington,  &  B.  S.  R. 

Co.  i\  Combs  317 

Elkins  c.  Camden  &  Atlantic  R.  Co.  GG4 
EUet  V.  St.  Louis,  Kansas  Citv,  &  N. 

R.  Co.                                      '  343 
Ellicottville    &    Great   V.   P.   R.   v. 

Buffalo  &  Pittsburg  K.  Co.         259,  321 

Elliot  V.  Northeastern  Hallway  Co.  3.j8 

Elliott  r.  Fairhaven  &  Wistvil'le  R.  Co.  ;;29 

I'.  South  Devon  R.  Co.  373 

Ellis  1'.  Coleman  6G4 

I'.  Esse.x  Bridge  Co.  Ill 

r.  London  &  Southwestern  R.  Co.  487 


V.  Marshall 

('.  Pacific  Kailroad  Co. 

V.  Sheffield  Gas  C.  Co. 

I".  Swanzcv 
Ellison  r.  Mobile  &  Ohio  R.  Co. 
Ells  V.  Pacific  Railway  Co. 
Elmer  r.  Locke 
l'".lwood  r.  Bidli>ck 
Elysville  r.  O'Kisco 
Embury  c.  Conner 
Emerson  r.  Western  Union  R.  Co. 
Emmerson's  Case 
Enfield  TollBridge  Co.  >■  Hartford  & 
New  Haven  R.  Co.       242,  204,  207,  268 


(JO 
4S0 

638.  510 
320 

173,  184 
523 
666 
82 
lfi2 
2:;4 
227 
139 


221, 


Ixvi 


TABLE   OF   CASES. 


Englewood    Connecting   K.    Co.    v. 

Chicago  &  Eastern  I.  R.  Co. 
Ennis  r.  Wood  Uiver  IJ.  II.  Co. 
Enriglit  v.  ijan  Francisco  &  San  J.  11. 

Co. 
Entlioven  v.  Iloyle 
Eppt's  V.  Mississippi  Gainesville,  &  T. 
K.  Co.  145, 

Erie  &  Nortlieast  R.  Co.  v.  Casey 
Erie  Railway  Co.  v.  Decker 
Ernest  v.  Nicliols 

V.  Croysdell 
Ernst  V.  Hudson  River  R.  Co.        590, 
Escanaba     &    Lake    M.    T.    Co.    v. 

Cliicago 
Essex  Bridge  Co.  v.  Tuttle 
Estes  r.-  Atlantic  &  St.  Ln  wrence  Tl.  Co. 
Eton  ColU'ize  v.  Great  Western  R.  Co 
Etty  V.  Bridges 

European  &  North  A.  R.  Co.  v.  Poor 
Eustis  V.  Parker 
Evans  r.  Haefner  256, 

r.  Heart  of  Oak  B.  S. 

V.  Memphis  &  Charles=ton  R.  Co. 

V.  Mis.souri,  Iowa,  &  N.  R.  Co. 

V.  St.  Paul  &  Sioux  City  R.  Co. 

V.  Sinalicoinbe 
Evansville  &  Crawfordsville  R.  Co  v. 
Barber 

r.  Cochran 

V.  Dick  239, 

V.  Duke 

V.  Fitzpatrick  275, 

V.  Stringer 
Everett  v.  Union  Pacific  R.  Co.  273, 

Everhart  v.  Terre  Haute  &  I.  R.  Co. 
V.  West  Cliester  &  P.  R.  Co.  182, 

Eversfield  i-.  Mid-Sussex  Railway  Co. 

258, 
Lawrenceburg  &  Upper  M. 


Eward  v 
R.  Co 

Ewing  f 

Ej'ton  t 

Co. 


Chicago  &  Alton  R.  Co. 
Denbigh,  Ruthin,  &  C.  R. 


F. 


283 
280 

525 
120 

200 
2f)l 
472 
00-1 
0(55 
5!)0 

.335 

it;2 
50'J 
.  31 
147 
628 

43 
300 
G88 

98 
384 

49t; 

008 

527 
510 
200 
320 
510 
510 
274, 
280 
555 
186, 
190 
252, 
408 

550 

496 

375 


Falconer  v.  Campbell  61 

1-.  European  &  North  A.  R.  Co.      491 

Falkner  v.  Ohio  &  Mississippi  R.  Co.      98 

!'.  S;)inorset  &  Dorset  R.  Co.  274 

Fall  River  Iron  W.  i;.  Old  Colony  & 

F.  R.  R.  Co.  333,413,  727 

Falls  V.  Belfast  &  Bnllvmena  R.  Co.     372 
Farley  v.  Cliicago,  Rock  I.,  &  P.  R. 

Co.  419,  577 

V.  St.  Louis,  Kansas  C,  &  N.  R. 

Co.  484 

Farlow,  l-'.r  pnrte  301 

Farmer-^'  Bank  r.  Iglehart  HI 

V.  Wassou  112 


Farnum  v.  Blackstone  Canal  Co.  47 

Farrow  v.  Vansittart  2 

Farvvell   v.   Boston   &  Worcester  R. 

Co.  555,  560,  571,  572 

Faulkner  v.  F>ic  Railway  Co.  558 

V.  Ik'bard  195 

Faunce  v.  Burke  427 

Faviell  v.  Eastern  Counties  R.  Co.       360 
F'awcett  v.  House  025 

V.  York  &  North  M.  R.  Co.  493 

Fearne  &  Deane's  Case  72 

Fearnlp}'  r.  Morlcy  4-50 

Fearnside  &  Dean's  Case  134 

Featherstonhaugh  r.  Porcelain  Co.       Oil 
Felder  r.  Railro.ul  Co.  548 

Feltliani  v.  England  563 

Felts  V.  Memphis  710 

Fenton  v.  Trent  &  Mersey  N.  Co.    358,  705 
Fenwick  r.  Bell  OnO,  601 

Ferguson  v.  Brighton  &  South  C.  R. 

Co.  371 

V.  Wilson  127 

V.  Wisconsin  Central  R.  Co.  588 

Fernow  v.  Dubuque  &  Southwestern 

R.  Co.  528 

Ferris  v.  Van  Buskirk  515 

Feut  V.  Toledo,  Peoria,  &  W.  R  Co.     480 
Fewings  v.  Tisdal  033 

Ffooks  V.  London  &  Southwestern  R. 

Co.  67 

Field  V.  Field  78 

V.  Lelean  114 

I'.  Newport,  Abergavenny,  &  II. 

R.  Co.  400 

V.  New  York  Central  R.  Co.  474 

V.  Vermont  &  Massachusetts  R. 

Co.  282 

Filder  r.   London,  Brighton,  &  S.  C. 

R.  Co.  030 

Finch  V.  Central  Railroad  Co.  505 

Finlay  v.  Bristol  &  Exeter  R.  Co.  645 

Finnic   v.   Glasgow   ^S:  Southwestern 

R.  Co.  401 

First  National  B.  v.  Davies  58 

Firth  V.  Midland  Railway  Co.  229 

I'iscr  j;.  Mississippi  &  Tennessee  R. 

Co.  105 

Fish  V.  Dodtre  539,  540 

V.  Wolfe  420,  430,  454 

Fisher  v.  Chicago  &  Springfield  R. 

Co.  253 

V.  Essex  Bank  151 

V.  Evansville  &  Crawfordsville  R. 

Co.  198 

Fishmongers'  Co.  v.  Robertson  644 

Fitch   V.    Buffalo,   New    York,   &   P. 

R.  Co.  490 

V.  New  Haven,  New  L  ,  &.  S.  R. 

Co.  042 

Fitchburg  Railroad  Co.  r.  Boston  & 

Maine  R.  Co.  224.  282,  283, 

285,  337,  355 

V.  Charlestown  Mutual  Ins.  Co.     475 

V.  Grand  Junction  R.  &.  D.  Co.      425 


TABLE   OF   CASES. 


Ixvii 


Fitz-Iianliiige  v.  Gloucester  &  Berke- 
ley C.  ("o.  291 
Fitz[)atrick  v.  New  Albany  &  Salem 

1{.  Co.  5f'.8 

riaf:;;.  />i  rr,  v.  Lowber  (j2G 

Flamaiik,  Kr  parte  221 

Flattca  V.  Cliicat,'o,  Rock  I.,  &,  P.  R. 

Co.  ^  ^  401 

Y\em\ng,  Ex  parte  070 

Fletclier  v.  Auburn  &  Syracuse  R. 

Co.  300,  318 

V.  Boston  &  Maine  R.  Co.  088 

V.  Ciioat  Western  R.  Co.  315 

V.  Rylands  478 

r.  St.  Louis,  Kansas  City,  &  N. 

K.  Co.  508 

Flint  &  IVre  .^L  R.  Co.  v.  Dewey  G27 

Flower  v.  London,  Brighton,  &  S.  C. 

R.  Co.  241 

Flynn  v.  San  Francisco  &  St.  J.  R. 

Co.  47:'. 

Foley  ''.  Hill  4.!'.» 

Fontaine  v.  Soutlicrn  Pacific  R.  Co.  484 
Fooks  V.  Wilts,  Soniorset,  &  W.   R. 

Co.  384 

Foote  r.  Cin(;iiinati  9(} 

Forbes  v.  Atlantic  &  North  C.  R.  Co.  490 
Ford  e.  ("liicago  &  Northwestern  R. 

Co.  301,  320 

V.  Metropolitan  Railway  Co,  3(50 

V.  Santa  Cruz  Railroad  ("o.  317 

Forrest  v.  Manchester,  Slieffiekl,  &  L. 

R.  Co.  005 

Forster  v.  Cumberland  Valley  R.  Co.  3(57 
Forsythe  r.  Baltimore  &  Ohio  T.  Co.  423 
Fort  Edward  &  Fort  Miller  P.  R.  Co. 

V.  Payne  108 

Forward  v.  Hampsliire  &  Hampden 

C.  Co.  200 

Fosberry  v.  Waterford  &  Limerick  R. 

Co.  424 

Fossier  i'.  Morgans,  Louisiana,  &  T. 

R.  Co.  401 

Foster  r.  Bank  of  England  214 

I'.  Essex  Bank  514,  540 

V.  Fitch  458 

V.  Oxford,  Worcester,  &W.R.  Co.    70 
V.  Walter  51 

Fothcrby    v.    Metropolitan    Railway 

Co.  09G 

Fowie  V.  New  Haven  &  Northampton 

Co.  344 

Fowler  i-.  Kennebec  &  Portland  R. 

Co.  427 

Fox  I'.  Northern  Liberties  545 

V.  Ohio  235 

V.  Seal  455 

V.  Western  Pacific  R.  Co.  382 

Frankfort    &    Kokomo    11.    Co.    r. 

Windsor  288 

Franklin  Benevolent  A.  r.  Common- 
wealth 711 
Franklin  Bridge  Co.  r.  Wood  2 
Franklin  Glass  Co.  v.  Alexander           IGO 


Franklin  Glass  Co.  r.  White  IGO 

l"rankl3'n  v.  Lamond  I2l 

Eraser  v.  Whalley  610 

Frazier     v.    Pennsylvania    Railroad 

Co.  571 

Freck  v.  Philade!i)hia,  Wilnnngton,  & 

B.  H.  Co.  585 

Frederick  v.  Clarke  715 

Freedle  v.  Nortii  Carolina  R.  Co.  287 

Freeman  v.  Minneapolis  &  St.  Louis 

R.  Co.  578 

V.  Winchester  1G2 

Fremont  v.  Crippen  074 

Fremont,  Elkhorn,  &  M.  V.  R.  Co.  r. 

Whalen  272,  273,  288 

Freon  v.  Carriage  Co.  140,  141 

Freshwater   v.  Pittsburg,  Wheeling, 

&  K.  R.  Co.  384 

Fretz  c.  Bull  3.34 

Eritli  V.  Dubuque  318 

Fritz  i\  St.  Paul  &  Pacific  R.  Co.  400 

Frost  I'.  Union  Pacific  K.  Co.  5G3 

Frv  V.  Lexington  &   Mig    Sandy    R. 

Co.  104.163,105,100,411 

Fuller  V.  Academic  School  710 

V.  Dame  025 

Furman  Street,  In  re  272 

Eurniss  v.  Hudson  River  R.  Co.    307,  350 
Fyler  u.  Fyler  140 


G. 

Gage  !'.  Delaware,   Lackawanna,   & 

W.  R.  Co.  500 

V.  Newmarket  Bailway  Co.  27,  28 

Gahagan  v.  Boston  &  Lowell  R.  Co.     5'.t">, 

GUO 
Gale  ('.  Delaware,  Lackawanna,  &,  W. 

R.  Co.  03 

Galena  &  Chicago  R.  Co.  v.  Griffin  604,  522 

r   Jacobs  504 

V.  Loomis  502 

V.  Yarwood  GOO 

Galena  &  Soutlicrn  W.  R.  Co.  i-.  Birk- 

bcck  295,  301 

V.  Haslam  285 

Galloway  v.  London  243 

Galveston,  Harrisburg,  &  San  A.  R. 

Co.  V.  Donahoe  544 

r.  Pfeuffer  222 

Gammage  v.  Georgia  Southern   R. 

Co.  384 

Gandell  v.  P<  ntigny  032 

Gano  V.  State  721,  724 

Gardiner  f.  Boston  &  Worcester  R. 

Co.  323 

V.  Smith  5J0 

Gardner  v.  Charing  Cross  R.  Co.  375 

V.  Newburgh  233.  290.  .300,  341 

Garrett  v.  Chicago  &  Norlhwestcrn 

R.  Co.  473 

V.  Salisbury  &  Dorset  J.  R.  Co. 

427,  446 


Ixviii 


TABLE   OF   CASES. 


Giirrick  v.  Taylor  IIG 

Garris  i;.  rortsmouth  &  Roanoke  U. 

Co.  488 

Garrison  v.  Memphis  Insurance  Co.  475 
Gartliiiid  v.  Toledo,  Wabasli,  &  W. 

11.  Co.  55G 

Gaskell  V.  Chambers  617 

Gasway  i'.  Athinta  &  West  P.  II.  Co.  551 
Gates  V.  Burlington,  Cedar  R.,  &  M. 

K.  Co.  4'Jl,  4% 

Gawtiiern  v.  Stockport,  Disley,  &,  W. 

R.  Co.  832 

Gayle  v.  Cahawba  Railroad  Co.  162 

Gear  v.  Railroad  Co.  317,  340 

Gebiiart  v.  Junction  Railroad  Co.  100 

Geiger  v.  Western  Maryland  R.  Co.  4:;5 
General  Exchimsie  Bank,  /?i  rr.  112 

Genessee  Chief,   The,  v.  Fitzhugli  334 

Georgia  Hailrond  &  B.  Co.  v.  Cox  484 
Gerhard  /•.  Bates  138 

German  Bank  r.  Stumpf  53 

Gerrard    v.  Omaha,  Niobrara,   &   B. 

H.  R.  Co.  362 

Getty  V.  Hudson  River  R.  Co.  335 

Getz's  Appeal  253 

Gibbons  v.  Ogden  336 

Gibbs  V.  Liverpool  Docks  652 

Gibson  r.  East  India  ('o.  42') 

V.  Northern  Central  1?.  Co.  504 

i".  Pacific  Hailroad  Co.  55'J 

Giesy  I'.  Cincinnati,  Wilmington,  & 

Z.  R.  Co.  259,  275 


Gilbert's  Case 
Gilbert  v.  Cooper 

V.  Havernieyer 
Giles  V.  Boston  &  Maine  R.  Co. 

V.  Hutt 

V.  Taff  Vale  R.  Co. 
Gillam  v.  Sioux  City,  &  St.  P.  R.  Co. 
Gillenwater  v.  Madison  &  Indianap- 
olis R.  Co. 
Gillet  V.  Moody 

Gillett  V.  Western  Railroad  Co. 
Gilliam  v.  South  &  North  A.  R  Co. 
Gillinwater  v.  Mississippi  &  Atlantic 

R.  Co. 
Gillis  V.  Pennsylvania  Railroad  Co. 
Gillshannon  v.   Stony  Brook  R.  Co. 


153 
8 
304 

620 
164 
548 
527 

568 
108 
420 
544 

244 
90 
562, 
672 
574 
431 


Gilman  v.  Eastern  Railroad  Co. 

V.  Hall 

V.  Philadelphia 
Gilmore  v.  Northern  Pacific  R.  Co.  556, 505 

(iilpen  i;.  Howell  107 

Gittings  I'.  Mayhew  12 

Glenn  v.  Dnrsheimer  191 

V.  Soide  I'Jl 
Glover  i-.  London  &  Northwestern  R. 

Co.  548 

r.  North  Staffordshire   R.  Co.  2-;9, 
311,  353,  301 

V.  Powell  337 
Goddard  i'.  Chicago  &  Northwestern 

R.  Co.  508 


Goddard  v.  Hodges  15 

V.  Pratt  11 

Goff  V.  Great  Northern  R.  Co.  552 

Gold  V.  Vermont  Central  R.  Co,  292 

Gold  Mining  (Jo.,  Ex jnute  629 

Goodav  V.  Colchester  &  Stour  V.  R. 

Co.  '  16,  32,  228 

Goodman  v.  Pocock  631 

Goodrich  v.  Eastern  Hailroad  Co.  340 

V.  Reynolds  181 

Goodtitle  v.  Kiiibe  235 

Goodwin  v.  Boston  &  Maine  R.  Co.       291 

V.  Chicago,  Rock  I.,  &,  P.  R.  Co.    490 

V.  Gtazer  713 

V.  Union  Screw  Co.  620 

Gorman  i'.  Pacific  Railroad  Co.     492,  495 

I'.  Police  Board  710 

Gormley  v.  Ohio  &  Mississippi  R.  Co.  664 

Goshen  Turnpike  Co   v.  Hurt  in  161 

Gothard  v.  Alabnma  Great  S.  R.  Co.     588 

Gottschalk  v.   Chicago,  Burlington, 

&  Q   H.  Co.  317 

Gould  V.  Chicago,  Burlington,  &  Q. 

R.  Co.  558 

V.  Hudson  Piver  R.  Co.  236,  325,333, 

355 
Gowan  v.  St.  Paul,  Stillwater,  &  T. 

F.  R.  Co.  608,  520 

Gradv,  Ex  parte  142 

Graffy.  Baltimore  303 

V.  Pittsburg  &  Steubenville  R. 

Co.  Ill,  181 

Graham,  /r-'r  ]mrte,  60 

V.  Birkenhead,  &c.  R.  Co.  66 

V.  Columbus  &  Indianapolis  R. 

Co.  382 

V.  Mount  Sterling  C.  Co.  455 

Grand  Gulf  R.  v.  Stale  723 

Cirand    Junction     1!.    &    D.    Co.   v. 

County  Commissioners  332 

Grand  Junction  R.  Co.  /•.  White  511 

Grand   Rapids  &  Bay  C.  R.  Co.  v. 

Van  Dusen  426 

Grand   Rapids   &   Indiana  R.  Co.  v. 

Heisel  310,  317,  318,  348 

I'.  Jones  523 

Grand  Rapids,  Newavgo,  &c.  R.  Co. 

r.  Grand  Rapids  &  "l.  H.  Co.  265 

Grand  Hai)ids  Railroad  Co.  v.  Alley      362 
Grand  Trunk  Railway  Co.  v.  Cum- 

mings  556 

V.  Cunningham  93 

V.  Richardson  473 

I'.  Rosenberger  584 

Grannahan  v.  Hannibal  &  St.  Joseph 

R.  Co  457 

Grant  v.  Savannah  Railroad  Co.  435 

Gratz  V.  Red.l  162 

Gravelle  v.  Minneapolis  &  St.  Louis 

R.  Co.  556 

Gravcnstine's  Appeal  67 

Gray  v.  Burlington  &  Missouri  R.  R. 

Co.  222 

V.  Cincinnati  Soutlieru  R.  Co.         101 


TABLE   OF   CASES. 


Ixix 


Gray  i'.  Coffin 
V.  Hook 
V.  Liverpool  &.  Bury  R.  Co. 


221, 


V.  Pliiliuklpliia  &  Reading  li.  Co. 

r.  Portlami  Hank 
Grayble  r.  York  &  (jettysl»urg  T.  Co. 
Grays  v.  Lyiicliljurg  &  Salem  T.  Co. 

Gray  ville  &  .Mattooii  R.  Co.  v.  Christy 
Great  Kalis  &  0.  R.  Co.  v.  Copp 
Great  Liixemhourtj  R.  Co.  v.  Magnay 
Great  Nortii  of  E.,  C;.,  &  H.  J.  R.  Co. 

t'.  Clarence  Railway  Co. 
Great  North  of  E.  R.  Co.  v.  Biddulph 

V.  Clarence  Railway  Co. 
Great  Northern  R.  Co.,  Jix  parte 

V.  Eastern  Counties  U.  Co. 

I'.  Harrison 

V.  Kennedy 

V.  South  Yorkshire  R.  Co. 
Great  Western  R.  Co.  v.  Bacon 

V.  Birmingham  &.  Oxford  J.   R. 
Co.  30, 

V.  Decatur 

I'.  G odd  is 

V.  Goodman 

I'.  Helm 

V.  Lutz 

V.  Metropolitan  Co. 

i;  Mortliiand 

V.  Oxford,  Worcester,  &  W.  R. 
Co. 

V.  Regina  691, 

V.  Rushout  7t>, 

i".  Thompson 
Greatlied  v.  Southwestern  &  Dorclies- 

ter  R.  Co. 
Green  r.  African  Methodist  E.  S. 

V.  Boody 

V.  Miller 

V.  Morris  &.  Essex  R.  Co.        278, 

V.  Murray 

V.  Seymour 

V.  Winter 
Green    Bay  &   Minnesota   R.   Co.  v. 

Union  Steamboat  Co. 
Greenaway  r.  Adams 
Greeiiv."  r.  Dennis 

V.  New  York  Central  &  H.  R.  R. 
Co.  317, 

Greene  County  i'.  Daniel 
Greenville  &  Columbia  R.  Co.  v.  Cath- 
cart 

V.  Coleman  194, 

V.  Nunnamaker 

V.  Parllow 

F.  Smith 

V.  Woodsides 
Green  way  r.  Mead 
Greenwood  v.  Freight  Co. 

V.  Wilton  Railroad  Co.  283, 

Gregg  V.  Gregg 


147 

025 
34. 
23!  t 
67.; 
51 
187 
58, 
102 
3(52 
170 
027 

S'JG 
8, 
144 
205 
385 
635 
449 
163 
401 
504 

640 
324 
505 
90 
503 
255 
139 
504 

009 
692 
040 
512 


710 
250 

78 
294 
125 

61 
130 

006 

130 

2 

3.30 
690 

103 
197 
278 
271 
102 
187 
15 
204 
347 
626 


Gregory  v.  Patchett  006 

Gretheii  i;.  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  585 

Greve  v.  St.  Paul  &  Pacific  R.  Co.  383 
(jrier.>;on  v.  Cheslure  i.,ines  C.  378,  399 
Grippen  i-.  New  York  Central  R.  Co.  689, 

597 
Grissell  f.  Bristowe  115,123 

Grosvenor  v.  Ilainpstead  Junction  R. 

("o.  371 

Gronx  Improved  S.  Co.  v.  Cooper  ■>[ 

Guest  r.  Ilomfray  2;>0 

I'.  Worcester,  Bromvard,  &,  L.  R. 

Co.  154 

Gulf,  Colorado,  &,  S.  R.  Co.  v.  Dorsey  674 

V.  Graves  310 

V.  Greenlee  584 

1-.  Holt  471 

Gunn  i;.  London  &  Lancashire  Ins. 

Co.  10,  029 


H. 

Haas  V.  Grand  Rapids  &  I.  R.  Co.        688 
Habersham  v.  Savannah  &.  Ogeechee 

C.  Co.  092 

Hackett  v.  Boston,  Concord,  &  Mon- 
treal R.  Co.  290 
Haddon  v.  Ayers  028 
Haff  V.  Minneapolis  &,  St.  Louis  R. 

Co.  6.37 

Hagar  r.  Rrainerd  304 

llagerc  Reed  127 

Hagerstown  Turnpike  Co.  v.  Creeger      2 
Halier  v.  Ciiicago,  Umaha,  &,  St.  J.  R. 

Co.  296 

Haiglit  r.  Keokuk  327 

Haines  v.  Taylor  351 

Hake  v.  St.  Louis,  Keokuk,  &  N.  R. 

Co.  556 

Haldeman  v.  Pennsylvania  Central  R. 

Co.  202 

Hale  V.  Burlington,  Cedar  R.,  &  N.  R. 

Co.  458 

V.  Union  Mutual  F.  Ins.  Co.  543 

Hall  V.  Chaffee  2:3 1 

V.  Nashville    &    Chattanooga   R. 

Co.  475 

V.  Norfolk  Estuary  Co.  109,  126 

r.  Pickering  6;J0 

r.  Power  87,  88 

V.  Selma  &  Tennessee  R.  Co.  187 

1-.  United  States  Ins.  Co.  Ill,  180 

V.  Vcrnjont  &  Massachusetts  R. 

Co.  25, 017 

Ilalloran  v.  New  York  &  Harlem  R. 

Co.  488 

Halloway  v.  University  liailroad  Co.    348 
Iliiletead  v.  New  York  2^>8 

Ham  r.  Toledo,  Wabash.  &  W.  R.  Co.  CM 
Hambro  v.  Hull  &  I><indon  F.  Ins.  Co.  009 
Hamden  r.  New  Haven  &  Noriliamp- 
ton  Co.  680 


Ixx 


TABLE   OF   CASES. 


Hamilton  v.  Annapolis  &  Elk  Kiilsio 

I{.  Co.  -202,  29D 

V.  Galveston,  Ilarrisburg,  &  San 

A.  K.  Co.  555 

r.  Newcastle  &  Danville  R.  Co.  G15 
V.  New  York  &  Harlem  li.  Co.  322 
V.  Sinitli  10 

Hamilton  &  Indianapolis  R.  Co.  i-.  But- 
ler 587 
Hamilton  Plank  Road  Co.  v.  Rice   104, 200 
Hammersmith  Railway  Co.  v.  Brand  350, 

470 
Hammon  v.  Soutlieastern  Railway  Co.  4(31) 
llaiiimond  v.  Cliicago  &  Nortiiwestern 

li.  Co.  484,  509 

V.  Port  Royal  &  Augusta  R.  Co.     222 

V.  Sioux  City  &  Pacific  R.  Co.         4'.)() 

V.  Straus  55,  58 

Hampden    Paint    Co.  v.    Springfield, 

Aihol,  &  N.  1{.  Co.  297 

Hanington  v.  Du  Ciiastel  b25 

llanlin  v.  Chicago  &  Northwestern  R. 

Co.  350,  353 

Hanna  v.  Cincinnati  &  Fort  Wayne 

R.  Co.  195 

Hannibal  v.  Hannibal  &  St.  Joseph 

R.  Co.  265 

Hannibal  &  St.  Joseph  R.  Co.  v.  Fox   550 

V.  Higgins  575 

V.  Kenney  495 

V.  Martin  649 

V.  Rowland  292 

V.  Young  491,  584 

Hannuic  v.  Goldncr  113,  124 

Hanover  Railroad  Co.  v.  Coyle  589 

Harborough  v.  Siiardiow  303 

Harbv  v.  East  &  West  I.  D.  &  B.J.  R. 

Co.'  410 

Hard  v.  Vermont  &  Canada  R.  Co.      5(i4, 

572,  573 

Harding  v.  Goodlett  221 

V.  Metropohtan  Railway  Co.   376,  377 

Hardnian  v.  Nortiieasierii  Railway  Co.  305 

Hare  v.  London  &  Northwestern    R. 

Co.  117,059 

V.  Waring  124 

Hargreaves  v.  Lancaster  &  Preston 

J.  R.  Co.  31 

V.  Parsons  100 

Harlaem  Canal  Co.  v.  Seixas  l(i2 

Harlan  v.  St.  Louis,  Kansas  C,  &  N. 

!{.  Co.  587 

Harper  v.  Indianapolis  &.  St.  Louis  R. 

Co.  557 

Harrington  v.  Chicago,  Rock  I.,  &  P. 

R.  Co.  532 

V.  Workingmen's  Benevolent  A.      82 

Harris,  Ex  parte  117 

V.  Roof  620 

I'.  Stevens  1)0 

Harrisburg  v.  Crangle  299 

Harrisburg   &    Potomac    R.    Co.    »'. 

Pfffer  246,  295 

Harrison's  Case  153,  154 


Harrison  t-.  Berkley  480 

r.  Central  Railroad  Co.  558 

V.  Iowa  Midland  H.  Co.  274,  .304 

V.  Lexington  &  Ohio  R.  Co.  224 

Hart  r.  Albany  238 

V.  Boston,  IJevere  B.,  &  L.  R.  Co.  458 
V.  Western  Railroad  Co.         475,  480 
Hartford  &   Connecticut  W.  R.  Co., 

In  re  255 

Hartford  &  New  Haven  R.  Co.  v.  Boor- 
man  153,  183 
V.  Croswell  193 
V.  Keiniedy  101 
V.  New  York  &  New   Haven  R. 

Co.  654 

Hartley  v.  Harinan  633 

Hartsliorn  r.  Burlington,  Cedar  Rap- 
ids, &  N.  R.  Co.  273,  274,  297,  304 
Harty  v.  New  York  Central  li.  Vo.  585,  589 
Hartz  V.   St.  Paul  &  Sioux  City  li. 

Co.  318,  383 

Harvard  Branch  R.  Co.  r.  Rand  291 

Harvey  r.  Lackawanna  &  Blcomsburg 

R.  Co.  277,  361 

I'.  Lloyd  285,  880 

V.  Thomas  387 

Haslett  V.  Wotherspoon  15 

Hastings  v.  Amherst  &  Belchertown 

R.  Co.  724 

Hastings  &  Avoca  R.  Co.  v.  Miles  222 
Hastings  &  Grand  I.  R.  Co  v.  Ingalls  310 
Haswell  v.  Vermont  (^entral  R.  Co.  385 
Hatch  V.  Cincinnati  &  Indiana  li.  Co.  209 
i;.  Vermont  Central  li.  Co.  289,  270, 
312,  321,  342,  356 
Hattersley  v.  Shelburne  37,  065 

Havens  v.  Erie  Hallway  Co.  589 

Hawkes  v.  Eastern  Counties  R.  Co.      26, 

27,  28 

Hawkins,  Ex  parte  395 

V.  Maltby  128 

Hawley  v.  Baltimore  &  Ohio  R.  Co.    555, 

571 
Hawthorn  v.  Newcastle-upon-Tvne  li. 

Co.  '  4.30 

Hay  V.  Cohoes  Co.  305,  543 

Hayden  v.  Cabot  680 

V.  Noyes  83 

Hayes  v.  New  York  Central  &  II.  li. 

R.  Co.  419 

V.  Shackford  249 

?!    Western  Railroad  Co.  £55,  562 

Hayne  '■.  Beauciiamp  50,  105 

Haynes  v.  Barton  364 

V.  East  Tennessee  &  G.  R.  Co.       563 

r.  Palmer  183 

V.  Tlioiuas  326 

Hays  V.  Meller  600 

Hay  ward  r.  Now  York  261 

Ha V wood  &  Piitsborough  P.  R.  Co.  v. 

Bryan  186, 206 

Hazen  v.  Boston  &  Maine  R.  Co.  241». 

260.  550 
Ilazlchurst  i".  Savannah  Railroad  Co.  604 


TABLE   OF    CASES. 


Ixxi 


Ilealcy  v.  Story  613 

Ilc'jiiie  ".  Kd^'ers  11 

llc-ait  r.  State  IJank  107,  112 

lioaston  r.  Cincinnati  &  Fort  Wayne 

K.  Co.  57.  59,  144 

Ilcath  f.  IXs  Moines  &  St.  Louis  U. 

Co.  318 

Heatlicote  v.  North  Staffurdsliire  H. 

Co.  31, 32,692 

HeilfTcs  V.  Metroi)()litan  Railway  Co.    375 
Ileffnur  r.  Commonwealth  G!)8 

Helm  /•.  S\vij,'i;ett  099,  709 

Hemingway  r.  Kcrnandcs  2 

Ilenilee  v.  l'inl<erton  648 

Hciulerson  r.  AustraUan  Royal  M.  S. 

N.  Co.  640 

V.  La  con  156 

V.  New  Orleans  299 

V.  Now  York  Central  R.  Co.  318,  322 
V.  Railway  Co.  158,  0(38 

Henilerson  &  Nashville  R.  Co.  v.  Lea- 
veil  171 
Hennessey  v.  Farrell                                428 
Henry  v.  Al!e.;,'liaiiv  &  Tittslnirg  B.  Co.  821 
i".  Dubuque  &  I'aciliti  R.  Co.  200,270. 
289,  301,511 
V.  Lake  Shore  &  M.  S.  R.  Co.        563 
V.  Pacific  Railroad  Co.  513 
V.  Piitshur-r  &.  Alleghany  B.  Co.    312 
V.  Rutland  v^  Burlington  R.  Co.     617 
V.  Southern  Pacific  R.  Co.       473,481 
V.  Staten  Island  R.  C'o.                     563 
V.  Vermillion  &  Ashland  R.  Co.     156, 
168,  180,  204 
I'.  Vermont  Central  R.  Co.  314 
Hentz  ('.  Long  Island  R.  Co.  322 
Herbein  v.  Railroad  Co.  2S1 
Herkimer  Manufacturing  &.  II.  Co.  r. 

Small  102 

Ilerrick  i-.  Vermont  Central  R.  Co.      430, 
435,  440,  443 
Herring  v.  Wilmington  &  Raleigh  R. 

Co.  502 

Herrington  r.  Liston  7(i 

Hertford  r.  Hoore  230 

Hester  t;.  Memphis  &,  Charleston  R. 

Co.  198 

Helherington  >:  Ilayden  257 

He  wet  t  r.  Swift  552 

Hewitt  V.  Price  114 

Hewsou  V.  London  &,  Southwestern 

R  Co.  371 

Hevl  r.  Philadelphia,  Wilmington,  &. 

B   H.  Co.  232 

Ilibbard  r.  New  York  &  Erie  R.  Co.     94. 

90 
Ilibblewhite  v.  M'Morine       113,  114,  120, 

124 
Ilibbs  r.  Chicago  &  Southwestern  R. 


Co. 


i'^i,  -ii 


Hihernia  Turnpike  Co.  !•.  Henderson  180 

Ilickoy  V.  Uo-^ti.n  &  Lowell  R.  Co.  589 

Hicknk  r.  Platisburgh  238 

Hicks  V.  Launceston  59 


Iliggins  r.  Livingstone  610 

f.  Walervliet  Railroad  Co.  96 

Highland  Turnpike  Co.  i-.  McKean       59, 
104.  186,  187 
Hightower  v.  Thornton  102,  ItiU 

Ilisiley  c.  Lancashire  &,  Yorkshire  R. 

Co.  374 

Ililcoat  V.  Archbishops  of  C.  &  Y.         30:j 
Hill  f.  (Jreat  Northern  R.  Co.  374 

I'.  Manchester  Waterworks  Co.  622 
f.  Mohawk  &  lludsun  R.  Co.  262,  275 
V.  Pine  River  Bank  111 

V.  Portland  &  Rochester  R.  Co.  598 
V.  South  Staffordshire  R.  Co.  045 
V.  Syracuse,  Binghamton,  &.  N.  Y. 

'R.  Co.  93 

V.  Western  Vermont  R.  Co.  257 

Hilles  r.  Parish  48 

Hilliard  i'.   Chicago  &  Northwestern 

R.  Co.  528 

V.  Coold  85,  97,  100,  003 

c.  Richardson  53'J 

Hilton  V.  (Jiraud  106 

Hinckley  v.  Cape  Cod  R.  Co.  688 

Hine  v  Trover  334 

Hines  v.  Keokuk  &,  Des  Moines  R.  Co.  318 
Ilinton  V.  Morris  County  C.  S.  204 

Hitchcock  V.  Danbury  &.  Norwalk  R. 

Co.  412 

V.  Giddings  138 

Hoagland  r.  Bell  155 

I'.  Cincinnati  &  Fort  Wavne   R. 

Co.  '  160 

Honre,  Kx  parte  72.  134,  665 

Hobbitt  V.  London  &  Northwestern  R. 

Co.  538 

llochster  c.  De  Latour  432 

Hodges  I'.  Rutland  &  Burlington  R. 

Co.  017 

Ilodgkinson  v.  National  Live  S.  Ins. 

Co.  628 

Iloey  V.  Dublin  &  Belfast  J.  R   Co.       558 
lloffbauer    '•.     Davenport    &.    North- 

we>tern  R.  Co.  93 

Hofler  V.  Pomisylvanii  Canal  Co.  239 

Hofnagle  v.  New  York  Central  &,  H. 

R.  li.  Co.  5.39 

Ilngan  v.  Central  Pacific  R.  Co.  65'i 

Hogg  V.  Zanesville  Canal  Co.  3."}5 

Hou'gatt  r.  Vicksburg,  Slueveiiort,  & 

P.  R.  Co.  253 

II(d\e  V.  St.  Louis,  Keokuk.  &  N.   R. 

Co.  504 

Ilolbert  r.  St.  Louis,  Kansas  Citv,  & 

N.  R.  Co.  ■•-'23.283 

Holcnmb  r.  New  Hope  Delaware  B.  Co.  78 

Ilolilen '•.  Fitehbiiri:  Ix.iilroad  Co.  5(>3 

i;.  Rutland  JL  Burhngion  R.  Co.     510, 

518 
Holder  f.  Lafavette,  Bloomington,  & 

M.  R.  Co.     '  r,18 

Hole  V.  Barlow  351 

V.  Sittingboume  &  Sheerness  R. 

Co.  542 


Ixxii 


TABLE   OF   CASES. 


Holland  v.  Chicago,  Milwaukee,  &  St. 

P.  K.  Co.  587 

lloUiday  v.  St.  Leonard  652 

Ilollister  V.  Union  Co.  313 

llolman  v.  Chicago,  Kock  I.,  &  P.  E. 

Co.  491 

Holmes,  Ex  pnrie  72,714 

V.  Gilliland  59 

V.  Iliggins  15 

Holt  V.  Gas-Light  &  C.  Co.  356 

Ilornan  i'.  Stanley  541 

Ilomersham  v.  Wolverhampton  Water 

Works  Co.  431,  045 

Honner  r.  lUinois  Central  R.  Co.  555,571 
Hook  r.  Worcester  &  Nashua  K.  Co.  520 
Hooker  v.  New  Haven  &  Northampton 

Co.  307, 341 

I'.  New  York  &  New  Haven  K. 

Co.  313 

I'.  Utica  &  Minden  T.  Co.  259 

Hooper  v.  Savannah  &,  Memphis  R. 

Co.  273 

Hop  &  Malt  Co.,  In  re  130 

Hopkins  v.  Great  Northern  R.  Co.       312, 

359 
V.  Kansas  Pacific  R.  Co.  484 

V.  Prescott  625 

Horn  V.  Atlantic  &  St.  Lawrence  R. 

Co.  487,  515 

Hornaday  v.  Indiana  &  Illinois  C.  R. 

Co.  199 

Horner's  Estate,  In  re  221 

Hornstein  v.  Atlantic  &  Great  W.  R. 

Co.  272 

Horton  v.  Westminster  Improvement 

C.  622 

Hortsman  r.  Lexington  &  Covington 

R.  Co.  223 

Hosher  v.  Kansas  City,  St.  J.,  &  C  B. 

R.  Co.  270 

Hosking  r.  Phillips  385 

Hotchkiss  V.  Auburn  &  Rochester  R. 

Co.  283 

V.  Hougli  550 

Houghton  V.  Railroad  Co.  3.33 

Houklsworth  v.  Evans  142,  607,  608 

Ilousatonic   Railroad   Co.  v.    Water- 
bury  489 
Houston  &  Great  N.  R.  Co.  v.  Meador  539 
i:  Miller                                      555,  556 
V.  Parker                                     343,  344 
Houston  &  Texas  C.  R.  Co.  v.  Dun- 
ham 560 
V.  Myers                                    557,  560 
V.  Odum                                    316,  318 
V.  Terry                                            490 
Howard  v.  (iage                                688,  710 
V.  Wilmington   &   Susquehanna 
R.  Co.                                        427 
Howbeach  Coal  Co.  v.  Teague  165 
Howden  v.  Simpson                           23,  24 
Howe  V.  Derrel                                        724 
V.  Starkweather                                 107 
Hubbard  v.  Chappel  53 


Hubbard  ;;.  Russell  343 

llubberstv  v.  Manchester,  ShefiBeld, 

&L.  K.'Co.  118 

Ilubgh  V.  New  Orleans  &  C.  R.  Co.       568 
lluddersfield  Canal  Co.  i'.  Buckley      163, 

180,  182 
Hudson  V.  Carman  58,  79 

V.  Leeds  &  Bradford  R.  Co.  384 

Hudson  &  Delaware  C.  Co.  v.  New 

York  &  Erie  K.  Co.  267 

Hudson  River  R.  Co.  v.  Cutwater       300, 

388 
Hueston  i\  Eaton  &  Hamilton  R.  Co.  350 
Huey  V.  Indianapolis  &  Vincennes  R. 

Co.  484 

Hughes  V.  Antietam  Manufacturing 

Co.  161 

V.  Chester  &  Holyhead  R.  Co.  420 
V.  Cincinnati  &  Springfield  R.  Co.  541 
i;.  Providence  &  Worcester  R.  Co.  320, 

417 

Hull  Flax  &  C.  Co.  t'.  Wellesley      14,  165 

Humble  V.  Laugston       110, 119,  124,  129, 

131,  132,  133,  134 

V.  Mitchell  106,  126 

Humfrey  r.  Dale  125 

Hunt  I'.  Adams  120 

r.  Gunn  15 

V.  Kansas  &  Missouri  B.  Co.  335 

V.  Test  626 

Huntingdon  &  Broad  T.  M.  R.  Co.  v. 

Decker  557 

Hurd  V.  Rutland  &  Burlington  R.  Co.  513 
Hurdman   v.   Northeastern   Railway 

Co.  345 

Hussner  v.  Brooklyn  City  R.  Co.  317 

Hutchins  i-.  State  Bank  107 

Hutchinson  v.  Cliicago  &  Northwest- 
ern H.  Co.  220 
I'.  Manchester,  Bury,  &  R.  R.  Co.  382, 

387 
V.  York,  Newcastle,  &  B.  R.  Co.   539, 
555,  571 
Hutton  V.  London  &  Southwestern  R. 

Co.  220,  391 

V.  West  Cork  R.  Co.  617 

Huvett  i".  Philadelphia  &  Reading  R. 

Co.  307,  471 

Hyam,  Ex  parte  154 

Hyams  v   Webster  250 

Hyatt  V.  Whipple  69 


Illinois  &  St.  Louis  R.  &  C.  Co.  v.  Cobb  383 
Illinois  &   Wisconsin  R.  Co.   v.  Van 

Horn  288,  290 

Illinois  Central  R.  Co.  v.  Bethel  343 

V.  Buckner  590 

V.  Dickerson  526 

I'.  Downey  648 

V.  Frelka  674 

V.  Gillis  491 


TABLE  OP   CASES. 


Ixxiii 


Illinois  Central  R.  Co.  v.  Goodwin 

V.  (jiet-n 

V.  ilaiuincT 

V.  Indiana  &  Illinois  R.  Co. 

V.  Jewell 

V.  Jones 

V.  Kaniinse 

t;.  MiiMlesniith 

1-.  Miililleswortii 

V.  Plielps 

V.  Phillips 

V.  Reedy 

V.  Sutton 

V.  Swcarinpen 

I'.  United  States 

V.  Wlialen 

c.  Williams 
Illinois  Grand  T.  R.  Co.  v.  Cook 
Illinuis  Miilland  R.  Co.  v.  lilinuis 
Illinois  Ivivur  li.  Co.  v.  Beers 

r.  Zinuner 

Illinois  Western  E.  R.  Co.  r.  Mayrand  2'.).5 
Inilay  v.  Union  Branch  R.  Co.  324 

Imperial  (ias  L.,  &c.  Co.  v.  Hroadbent  350 
Imperial  Mercantile  C.  A  ,  In  re  G8 

Indiana,  Blooniington,  &  VV.  R.  Co.  v. 

Leak  522 

Indiana  Central  R.  Co.  v.  Gapon  518 

V.  Hunter  272,  27tj 


504 
544 
6H5 
'223 
657 
560 
615 
612 
489 

604,  525 
504 

627.  51»y 

85,  '.>8 

504,  521,  525 

235 

528 

525 

411 

635 

193 

65 


V.  Leamon 

522 

V.  Moore 

524 

V.  Oakes 

283,  349 

Indianapolis  &  Cincinnati   R. 

Co.  V. 

Caldwell 

485 

V.  Elliott 

529 

I'.  Guard 

624 

I'.  Jewett 

79 

I'.  Kerclieval 

519 

V.  Kinney 

487,  520 

V.  Mc Kinney 

624 

V.  Meek 

617,  532 

V.  Moore 

529 

V.  Oestel 

522 

r.  Snellinjj 

629 

V.  Townsend 

617 

V.  Wrifiiht 

624 

Indianapolis  &  Madison  R.  Co. 

V.  Sol- 

omon 

050 

Indianapolis  &  St.  Louis  R. 

Co.  V. 

Caldwell 

514 

V.  Hackenthal 

468 

V.  Hall 

608,  509 

V.  Kennedy 

98 

V.  Peyton 

499 

r.  Smith 

603 

V.  S  my  the 

295 

Indianapolis  &  Vincennes  R. 

Co.  V. 

MeLin 

685 

V.  Newsom 

294 

Indianapolis,  Bloomington,  &  W.  R. 

Co.  I'.  Hartley 

317 

Indianapolis,  Cincinnati,  &  L. 

R.  Co. 

r.  Hamilton 

491 

V.  Ray 

484 

Indianapolis,  Decatur,  &.  S.  R.  Co.  v. 

Pu-h  288 

Indianapolis,  Peru,   &   C.   R.  Co.  v. 

Lindley  523 

V.  Rayl  222 

Indianapolis,  Pittsburg,  &.  C.  R.  Co.  v. 

Fisher  519 

V.  Kerclieval  519 

1-.  Sparr  501 

V.  'I'ruitt  623 

1-.  Wharton  602 

V.  Williams  501 

Indianapolis  Railroad  Co.  v.  Adkins     524 
V.  Klein  504,  571 

V.  Love  504,  571 

Inger.  Birininf,'ham,  Wolverhampton, 

&  S.  V.  R.  Co.  128 

Ingersoll  v.  New  York  Central  &.  II. 

R.  R.  Co.  .588 

V.  Stockbridge  &  Pittsfield  R.  Co.  6.38 
Inglis  r.  Great  Northern  R.  Co.  10;^,  619 
Ingram  c.  Chicago,  Dubuque,  &■  M. 

R.  Co.  317,  819 

International  &  Great  N.  R.  Co.   r. 

Benitos  237,  348 

V.  Smith  585 

International  Railroad  Co.  v.  Bremond  192 
Irish  V.  Burlington  &  Southwestern  R. 

Co.  384 

Irish  Peat  Co.  v.  Phillips  14 

Iron  Railroad  Co.  i:  Fink  112 

Frvin  /•.  Turnpike  Co.  195,  266 

Isaacs  V.  Third  Avenue  R.  Co.  544 

Isbell  V.  IS'ew  York  &  New  Haven  R. 

Co.  528,  531,  592 

Isham  V.  Bennington  Iron  Co.  107 


J. 


Jackson  r.  Chicago  &  Northwestern 

R.  Co.  472,  491 

V.  Cocker  108, 129 

V.  James  334 

V.  Kansas  City,  Lawrence,  &,  S. 

K.  K.  Co.  560 

f.  Lamphire  242 

V.  North  Wales  R.  Co.  444 

i;.  People  715 

i;.  Rutland  &  Burlington  R.  Co.    258, 
486,  52(5 
?'.  Second  Avenue  R.  Co.  544 

Jacksonville  v.  Jacksonville  Railw.iy 

Co.  G30 

Jacksonville  &  Southeastern  R.  Co. 

V.  Walsh  272 

Jacob  J'.  Louisville  274 

Jacobs  V.  Peterborough  &  Shirley  R. 

Co.  "         229 

Jacques  v.  Clinmbera       129,  140.  147,  148 
Jam.'iica  &  Brooklvn  P.  R.  Co.  v.  New 

York  &  Manhattan  B.  R.  Co.  298 

James  r.  Woodruff  HI 

James  River  &  Kanawha  Co.  r.  Turner  271 


Ixxiv 


TABLE   OP   CASES. 


Jancsville  v.  Milwaukee  &  Mississippi 

R.  Co.  S29 

Jiirrett  i-.  Kennedy  lo 

Jarvis  r.  Santa  Clara  V.  R.  Co.  "Ai 

Jefiersonville  Railroad  Co.  i-.  Adams    4'.<ii 

V.  Appletjato  517 

V.  Dougherty  517 

V.  Downey  5l)l 

V.  Ksterle  31G,  317,  818 

i\  Foster  4VV) 

V.  Lvon  501 

I'.  Undcrliill  409 

Jencks  v.  Colonian  05 

Jenkins  v.  Union  Turnpike  Co.  IHf) 

Jennings,  Ex  parte  G77 

V.  Brougliton  i^O'.i 

V.  Great  Western  R.  Co.  100 

Jeplierson  i-.  Hunt  S()") 

Jersey  v.  Briton  Ferry  F.  D.  Co.  S02 

Jetter  v.  ^'ew  York  &  iiarleni  11.  Co.    040 

Jewell  r.  Stead  4io 

Joel  !•.  Morrison  547 

Jolms  V.  Johns  107 

Jo! m son,  /J.r  parte  GO 4 

r.  Anderson  320 

r.  Atlantic  &  St.  Lawrence  R.  Co.  308 

V.  Chicasjo,  Milwaukee,  &  St.  P. 

R.  Co.  50:) 

V.  Concord  Railroad  Co.  04 

V.  Freeport  &  Mississippi  R.  R.  Co.  272 
r.  Hudson  River  R.  Co.  580 

V.  ]\IcKissack  7H' 

V.  Rock  Island  &  Pacific  R.  Co.        87 
V.  St.  Louis,  Iron  M.,  &.  S.  R.  Co.  238, 

348 
V.  Shrewsbury  &  Birmingham  R. 

Co.  635,  63G 

V.  United  States  Bank  120 

V.  Wabash  &  Mount  Vernon  P. 

R.  Co.  202 

Johnston  v.   Ciiicapo,  Milwaukee,  & 

St.  P.  R.  Co.  253 

V.  Southwestern  Railroad  B.  5() 

Johnston  Harvester  Co.  v.  Clark  53 

Joint-Stock  D.  Co.  v.  Brown  G20,  C30 

Joliet  &  Chicago  R.  Co.  v.  Barrows       710 

Joliet  &  Northern  I.  R.  Co.  v.  Jones     480 

Jones  V.  Bird  653 

V.  Chamberlain  453 

V.  Chicago  &.  Iowa  R.  Co.  273 

V.  Chicago   &   Northwestern    R. 

Co.  609 

v.  Columbia  &  Greenville  R.  Co.    485 
V.  Festiniog  Railway  Co.  478 

V.  Mersey  Board  052 

r.  Michigan  Central  R.  Co.  472 

1-.  New  Orleans  &  Selnia  R.  Co.      383 
V.  New  York  Central  &  II.  R,  R. 

Co.  550 

?•.  Portsmontli  &  Concord  R.  Co.    453 
r.  St.  John's  College  430 

r.  Seligman  508 

V.  Shebovgan  &  Fond  du  Lac  R. 

Co.  '  40G 


Jones  V.  Stanstead  &  Sheflbrd  C.  R.  Co.  009 
V.  Waltham  579 

Josephs  V.  I'ebrer  120 

Joy  c.  Jackson  &  Michigan  P.  R.  Co.  62 
Jubb  t:  Hull  Dock  Co.  302,  717 

Judson  V.  New  York  &  New  Haven 

R.  Co.  420 

Junction  City  &  F.  K.  R.  Co.  r.  Silver  281 
Junction  Railroad  Co.  r.  Reeve  202,  023 
Justice  V.  Nesquehoning  Valley  R.  Co.  383 
Justice  of  Lee  C.  v.  Hunt  715 


K. 


Kaes  V.  Missouri  Pacific  R.  Co.  505 

Kain  v.  Smith  500 

Kaiser  v.  St.  Paul,  Stillwater,  it.  T.  F. 

R.  Co.  317 

Kane  r.  New  York  &  New  F.  R.  Co.  508 
Kankakee  &  Seneca  R.  Co.  r.  Straut  285 
Kansas  v.  Missouri  Pacific;  R.  Co.  003 

Kansas  Central  R.  Co.  v.  Allen      200,  288 
r.  Fitzsinimons  539 

Kansas  City  &  Emporia  R.  Co.  r. 

Kregelo  274,  515 

r.  Riley  353 

Kansas  City,  Emporia,  &  S.  R.  Co.  v. 

Merrill  274 

Kansas  Citv,  Fort  S.,  &  G.  R.  Co.  v. 

Ewing  484 

V.  Owen  474 

Kansas  City,  St.  Joseph,  &  C.  B.  R. 

Co.  V.  Campbell  295 

V.  Flynn  501 

Kansas  Pacific  R.  Co.  i*.  Hopkins  220 

V.  Landis  485 

V.  Mower  485 

V.  Salmon  550,  576 

r.  Tvvombiy  588 

V.  Wiggins  485 

V.  Wood  484 

Karsen  v.  Milwaukee  &  St.  Paul  R. 

Co.  473 

Karst  V.  St.  Paul,  Stillwater,  &  T.  F. 

R.  Co.  317 

Kartriglit  v.  Buffalo  Commercial  B.  140 
Kean  v.  Johnson  65 

Kearney  ;•.  Chicasro,   Milwaukee,  & 

St.  P.  R.  Co.  588 

i;.  London,  Brighton,  &  S.  C.  R. 

Co.  581 

Keasy  v.  Louisville  275 

Keech  v.  Baltimore  &  Washington  R. 

Co.  69,  501 

Keegan  v.  Great  Western  R.  Co.  656 

Keith  V.  Cheshire  Railroad  Co.  615,  516 
Keiland  v.  Fulford  220 

Kelley  v.  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  561 

Kellogg  i:  Chicago  &  Northwestern 

R.  Co.  473 

r.  Krauser  290 

V.  Milwaukee  &  St.  Paul  R.  Co.     481 


TABLE  OF   CASES. 


lxx\ 


Kelly  1-.  New  York  539 

I'.  Southern   Minnesota  R.  Co.    417, 

588 
Kemp  V.  London  &,  Brighton  R.  Co.  1(70 
Kerns  V.  O'Kelik-y  4o5 

Keiulall  V.  Missisquoi  &  Clyde  U.  K. 

Co.  21. J 

Kcnnard  r.  Burton  5'.Jl 

Ken  nay  de  v.  raciliu  Railroad  Co.  5o'.) 

KennelK'c  &  Portland  li.  Co.  v.  Kendall  102 
i".  Waters  157 

Kennedy  r.  Col  ton  202 

V.  I'anania  .Mail  Co.  211 

Kennett's  IV'titinn  312 

Koniiolt  Navigation  Co.  v.  Withing- 

ton  349 

Kenney  r.  Hannibal  &  St.  Josepli  R. 

Co.  472,  481 

Kenosha,  Rockford,  &  11.  L  R.  Co.  v. 

Marsh  195,411 

Kensit  i-.  Great  Eastern  R.  Co.  34Li 

Kent  V.  New  York  Cenlral  K.  Co.  4-j7,  038 
Quicksilver  .Mining  Co.  00,  82 

48"). 
41)2 


Kentucky  Central  R.  Co.  v.  Lebus 


Kentucky  Insurance  Co.  v.  Western  &. 

Atlantic  U.  Co.  475 

Kcppcll  V.  Badey  2 

Kerr,  In  re  208 

Kerridge  v.  Hesse  11 

Kerwliackor  v.  Cleveland,  Columbus, 

&  C.  R.  Co.  514,502 

Kerwin,  A'.r  ;)a;Y(;  120 

Kosce  V.  Chicago  &  Northwestern  R. 

Co.  473, 4S0 

Kidwell  V.  Baltimore  &  Oliio  R.  Co.    435, 

436,  4:^7 

V.  Houston  &  Great  N.  R.  Co.        5tJ0 

Kidwelly  Canal  Co.  c.  Raby       8,  200,  201 

Kinib;dl  v.  Cochoco  Railroad  Co.  3*54 

I'.  Kennebec  &  l^ortland  R.  Co.      2'.l3 

Kiniber  r.  B.irbcr  027 

Kimble  c.  White  Water  V.  C.  3-18 

King  V.  Archbishop  of  Canterbury       073 

V.  Boston  &  Worcester  R.  Co.         555 

V.  Brecknock  &,  Abergavenny  C. 

N.  675 

V.  Bristol  Dock  Co.  358,  (iOi 

V.  Chipping  Norton  lOii 

V.  (\)mnii.ssioncr  395 

V.  Commissioners  of  T.  &.  I.  357 

V.  Coopers  678 

r.  Elliott  55,  105,  188 

i;.  Gower  697 

V.  Gray's  Inn  709 

V.  Groat  M.irlow  78 

V.  Ilungerl'ord  Market  Co.  370 

V.  Justices  of  the  C.  of  Y.  G'M) 

V.  Justices  of  West  R.  of  Y.  096 

V.  Langhorn  09,  7(5 

V.  Leeds  &  Sol  by  H.  Co.  ;r)S 

V.  London  Dock  Co.  3.')7 

V.  Manchester  Commissioners         ;'>7i'i 
V.  Minneapolis  Union  R.  Co.  272 


King  V.  Northlcach  &  Wiiitney  R. 

V.  Nottingham  UM  W. 

r.  Ohio  (Si,  Mi^sis!>i|)pi  R.  Co. 

i;.  Oliio  Railroad  (Jo. 

r.  I'asmore 

V.  I'ease 

V.  I'edley 

V.  I'ennegoes 

i^.  Round 

V.  Tiieodorick 

V.  Whitaker 

V.  Wilts  &.  Berks  C.  N. 

V.  Winwick 

V.  Witham  Navigation  Co. 

V.  Wycomlie  K;iilway  Co.       371, 
Kip  V.  New  York  &  Harlem  U.  Co. 
Kirk  i:  Bell 

J).  Brondey  Union  G. 
Kish  c.  Venezuela  Railway  Co. 
Kistier  v.  Indianapolis   &  St.  Louis 
^  R.  Co.  433, 

Kistner  v.  Indianapolis  &  St.   Louis 

R.  Co. 
Kitchen  v.  St.  Louis  Railway  Co. 
Klein  v.  Alton  &  Sangamon  R.  Co. 

V.  St.  Paul,  Minneapolis,  &  M.  R. 
Co. 
Kline  v.  Central  Pacific  R.  Co. 
Knapp  V.  London,  Chatham,  &,  D.  R. 
Co. 
I'.  McAuley 
Knauft  !'.  St.  Paul,  Stillwater,  &  T. 

V.  R.  Co. 
Knight  V.  Abert 
V.  Barber 

I'.  Carrolton  Railroad  Co. 
I.-.  Kox 

v.  Toledo  &  Wabash  R.  Co. 
Knorr  r.  Germantown  Railroad  Co. 
Kno.\  County  c.  Aspinwall  070, 

Koch  I-.  Dauphin 

Korlmel  r.  New  Orleans  Railroad  Co. 
Kramer  v.  Cleveland  &  Pittsburg  R. 

Co. 
Kraus  v.  Burlington,  Cedar  R  ,  &  N. 

R.  Co. 
Kroutz  r.  Toledo,  Wabash,  &  W.  R. 

Co. 
Kucheman  v.  Chicago,  Clinton,  &.  D. 

R.  Co. 
Kulm  V.  Chicago,  Rock  I.,  &  P.  R.  Co. 
Kumler  c.  .Iimction  Railroad  Co. 
Kuthsburg  Ci.  Eastern  R.  Co.  v.  Henry 
Kyle  V.  Auburn  «ic  Rochester  R.  (So. 


670 
704 
565 
550 

00 
470 
639 
715 
702 

6U 

78 
675 

78 
395 
375 
283 
607 
430 
610 

430 

446 

06 

102. 

187 

296 
100 

374 
240 

302 
487 
106 
410 
5;J8 
525 
318 
094 
259 
318 

287 

484 

521 

318 
4".»2 
50.1 
274 
30S. 
507 


L. 


L'Amorenx  v.  Gould  201 

Lacharnie  v.  Quartz  Rock  M.  G.  M. 

Co.  703 

Lackawanna  &  Bloomsburg  R.  Co.  »•. 

Doak  407,  469 


Ixxvi 


TABLE   OF   CASES. 


Lackland  v.  North  Missouri  R.  Co.       330 
Lafayette  &  Indiana  K.  Co.  v.  Slirlner  4a7, 
400,  517,  52G 
Lafayette,  Bloomington,  &  M.  R.  Co. 

V.  Clieeiiey  G18 

r.  Winslow  274 

Lafayette,  Muncic,  &   B.   R.    Co.  v. 

Murdock  269,  '290,  309 

Lafayette    Plank-Road   Co.    v.   New 

Albany  &  S.  11.  Co.  307,  310 

Laird  v.  Birkenhead  Railway  Co.  231 

Lake  v.  Butler  414 

V.  Duke  of  Argyll  11 

Lake  Erie,  Wabash,  &  St.  L.  R.  Co. 

V.  Eckler  457 

Lake  Ontario,  Auburn,  &  N.  Y.  R.  Co. 

V.  Mason  144,  189 

Lake  Ontario  Shore  R.  Co.  v.  Curtiss  200 
Lake  Shore  &  Michigan  S.  R.  Co.  v. 

Chicago  &  Western  I.  R.  Co.  265, 
381 
V.  Greenwood  98 

j;.  Knittal  558 

V.  Levalley  505 

J'.  McCormick  560 

V.  New  York,  Chicago,  &  St.  L. 

R.  Co.  265 

V.  Pierce  W 

V.  Rosenzweig  98 

Lamar  v.  Railroad  Co.  346 

Lamb  v.  Lynd  697 

V.  North  London  R.  Co.  41 1 

Lamert  v.  Heath  125 

Lanipliere  v.  United  Workmen  141 

Lamprell  i-.  Billericay  Union  645 

Lancashire    &    Yorkshire    R.   Co.  v. 

Evans  357,  391 

Lancaster  &  Carlisle  R.  Co.  i;.  Mary- 
port  &  Carlisle  R.  Co.  331 
Lancaster  Canal  Co.  v.  Parnaby  649 
Lance's  Appeal                                         234 
Lance  v.  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  304.  309 

Land  Credit  Co.  v.  Fermoy  631 

Lande  v.  Chicago  &  Northwestern  R. 

Co.  496 

Landrigan  v.  State  87 

Lane,  A't  ;>a/7e  142,619 

Langliam  v.  Great  Northern  R.  Co.  387,  391 
Langley  r.  Boston  &  Maine  R.  Co.  369 
Langlois  i*.  Buffalo  &  Rochester  R. 

Co.  516,  562 

Langton  v.  Waite  73 

Lanning  v.  Chicago,  Burlington,  &  Q. 

R.  Co.  473 

.Lantis,  In  re  719 

Lathropp's  Charity  365 

Lauderhrun  v.  Duffy  306 

Laugher  v.  Pointer  5.38,  539 

Lnuterman   v.   Blairstown    Railroad 

Co.  362 

Law  V.  Illinois  Central  R.  Co.  98 

Lawrence  v.  Great  Northern  R.  Co.     307, 

343,  357 


Lawrence  r.  Knowles  124 

Lawrence  Railroad  Co.  v.  Cobb  317 

Law  ton  v.  Fitchburg  Railroad  Co.  511 
Leach  r.  Eobes  127,  128 

Lead  Mining  Co.  v.  Merry  weather  629 
Leame  v.  Bray  548 

Leavenworth,  Lawrence,  &  G.  R.  Co. 

V.  Cook  472 

Leavenworth,  Topeka,  &  S.  R.  Co.  v. 

Paul  255,  305 

Leavitt  v.  Towle  320 

Leazure  r.  Union  Mutual  L.  Ins.  Co.  47 
Lebanon  i-.  Olcott  34'J 

Leber  v.  Minneapolis  &  Northwestern 

R.  Co.  383 

Leer.  Milner  394,685,711 

V.  Northern  Turnpike  Co.  279 

V.  Northwestern  Union  R.  Co.       245, 

298 
Leech  v.  Caldwell  435 

Leeds  &  Thirsk  R.  Co.  v.  Fearnley      189, 

190 
Lefever  v.  Lefever  135 

Legg  V.  Belfast  &  Ballymena  R.  Co.  365 
Leliey  v.  Hudson  River  R.  Co.  598 

Lehigh  Valley  R.  Co.  i;.  Lazarus  307 

V.  McKeen  481 

V.  Trone  307,  338 

Lehmicke  v.  St.  Paul,  Stillwater,  & 

T.  F.  R.  Co.  286,  288 

Leigh  I'.  Hind  414 

Lemmex  v.  Vermont  Central  R.  Co.  307 
Leo  V.  Union  Pacific  R.  Co.  63,  66 

Leominster  Canal  Co.  v.  Shrewsbury 

&  Hereford  R.  Co.  641 

Leonardsville  Bank  v.  Willard  69 

Lesan  i-.  Maine  Central  R.  Co.  587,  588 
Leslier  v.  Wabash  Navigation  Co.  248,  254 
Lester  i'.  Kansas  City,  St.  J.,  &  C.  B. 

R.  Co.  473 

Levering  v.  Philadelphia,  German- 
town,  &  N.  R.  Co.  245,  262 
Leviston  v.  Junction  Railroad  Co.  349 
Lewey's  Island  R.  Co.  v.  Bolton  164 
Lewis  V.  Billing  8 
V.  Chicago,  Milwaukee,  &  St.  P. 

R.  Co.  474 

V.  New  York  Central  R.  Co.  463 

V.  Railroad  Co.  364 

V.  Robertson  105 

V.  Smith  15 

V.  Wilmington  &  Manchester  R. 

Co.  365 

Lewiston  r.  County  Commissioners      249 

Lexington  &  Ohio  li.  Co.  v.  Applegate   323 

V.  Ornisby  230 

Lexington    &    St.    Louis   R.    Co.    v. 

Mockbee  295 

Lexington    &    West    C.    R.    Co.    v. 

Chandler  162,164,174,185 

r.  Staples  165 

Lichfield  t\  Simpson  350 

Liebengnt  ;•.  Louisville,  New  A.,  & 

St.  L.  R.  Co.  294 


TABLE   OP   CASES. 


Ixxvii 


Lincoln  i;.  Saratoga  &  Schenectady 

II.  C;o.  286 

Linil  r.  Isle  of  Wi{,'litF.  Co.      374,  C91,(i'.»2 

Lindsay  r.  CoiniiiissioiuTs  30:J 

V.  (Jreat  N'oriliern  li.  Co.  '.'A 

V.  Winona  &  St.  IVter  li.  Co.         47 i 

Lindscy  r.  Attorney-General  721 

V.  Liickett  710 

Lindn.s  c.  Melrose  til 4 

Linfield  r.  Old  Colony  R.  Co.        585,  (;.-,8 

Lister  r.  Lobley  2!)'.) 

Liston  V.  Central  Iowa  R.  Co.  52'J 

Little  i".  Newport,  Abergavenny,  &  II. 

R.  Co.  24U,  407 

Little  Miami  R.  Co.  v.  Collett  275 

V.  Greene  County  C.  419 

V.  Naylor  270,  410 

V.  Stevens  5154,  572 

V.  Wetniore  540,  548 

Little   Rock    &   Fort   S.    R.  Co.   v. 

Duffey  501 

r.  Dyer  3J8 

r.  Fiiiley  492 

V.  V-AgQ  624 

V.  Payne  505 

i;.  Trotter  492 

Little  Kock,  Mississippi  R ,  &  T.  R. 

Co.  r.  lirooks  334 

Littlefield  v.  Bi)ston  &  Maine  R.  Co.     2'.)5 

Littleton      Manufacturing      Co.      v. 

Parker 


Livennore  i'.  Jamaica 


175 
275,  27G,  287 


Livingston  v.  Grand  Trunk  Hailvvay 

Co.  9.3 

V.  New  Vork  320 

Llnnni'Uy  Railway  &  D.  Co.  v.  Lon- 
don &  Nortlnveslern  R.  Co.  448 
Lloyd  r.  New  York  54<) 
Loch  V.  Venables  148 
Locks    &    (Janals    P.    i'.    Nashua    & 

Lowell  R.  Co.  225,  :i84,  310,  .359 

Loiler  r.  Kekule  121) 

Lodge  No.  1.  (•.  Lodge  No.  1  05 

Logan  V.  Courtown  185 

Logansport  Railway  Co.  i*.  Buchanan    297 
I'.   VVrny  508 

Loisso  i;.  St.  Louis  &  Iron  M.  R.  Co.     291 
Londesboroii'^l),  E.v  jiarte  13 

London  r.  Vii  nacre  71 

London    &,    I5irniingham    R.    Co.    v. 

Grand  Junction  C.  Co.      350,  .390 
V.  Winter  047 

London  &  Mlackwall  R.  Co.  v.  Board 

of  Works  294 

I'.  Letts  358 

London  &  Brighton  R.  Co.  v-  Fair- 

clough  113,  120,  103 

I'.  Watson  98 

r.  Wilson  185 

London   &   Northwestern   R.    Co.   v. 

Ackroyd  227 

V.  Bradley  350,  391 

V.  McMichael  177 

V.  Skerton  424 


London   &   Northwestern   R.   Co.  «;. 

Smith  .391 

London  &  South  W.  R.  Co.  380 

London    &    Southwestern    R.    Co.    v. 

Southeastern  Kailway  Co.  036 

London,    Brighton  &,   S.   C.    R.  Co., 

J, I  ,<-  365 

V.  London    &    Southwestern    R. 

( •().  0.35 

Lon<lon  Discount  Co.,  In  re.  00 

London  Docks  Co.  v.  Knebell  20 

V.  Sinnott  047 

London    (Jrand    J.    R.    Co.   v.    Free- 
man 15-3,  179 
r.  Graham                             8,  153,  180 
London  Insurance  Co.  v.  London  & 

Westminster  Ins.  Co.  51 

Long  Island  Railroad  Co.,  In  re.       74,  80, 
153,  100,  513,  723 
Longabaugh  v.  Virginia  City  &  T. 

R.  Co.  471,472 

Loosemoore  i'.  Tiverton  &  North  D. 

R.  Co.  348 

Lord  V.  Essex  Building  A.  58 

V.  Wormwood  527 

Lord  Bailiffs  v.  Trinity  House  480 

Loring   v.    Worcester   &   Nashua  R. 

C:o.  473 

Lor^'mer  r.  Smith  114 

Loucks  V  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  581 

Louisville    &    Frankfort    R.    Co.    v. 

Ballard  500,  .531 

V.  Milton  489,  512 

Louisville  &  Nashville  B.  T.  Co.   v. 

Nasliville  &  Kentucky  T.  Co.  410 

Louisville    &    Nashville    R.    Co.    v. 

Bowler  564 

V.  Collins  509 

!•.  Felbern  672 

V.  Milan  490 

V.  Milton  485 

r.  Moore  605 

V.  Stone  485 

V.  Thompson  223,  272 

Louisville  &  New  Albany  R.  Co.  r. 

State  097 

Louisville,  Cincinnati,  &  C.  R.  Co.  v. 

Letson  63 

Louisville,  Evansville,   &  St.  L.   R. 

(^o.  r.  McVev  G03 

Louisville,  Nas'hville,  &  G.  S.  R.  Co. 

I'.  Heidmond  491 

Louisville,  New  Albany,  &  C.  R.  Co. 

V.  Cahill  609 

r.  Ehlert  472 

iv   Hanmann  472 

r.  Hichardson  474 

V.  Smith  601 

I'.  Speim  472 

f.  White  628 

V.  Wliitesell  492 

V.  Winderlick  2fl6 

f.  Zink  623 


Ixxviii 


TABLE   OF   CASES. 


Louisville  Kailroarl  Co.  v.  Cliappcll  SO" 
Loup  i:  ISoiitliein  California  It.  Co.  435 
Lovitt   i;.  WiUington   &  Western  R. 

Co.  206 

Low  V.  Central  Pacific  R.  Co.  004 

V.  Concord  U.  Co.  273 

V.  Connecticut  &,  Passumpsic  R. 

R.  Co.  25,  .37 

V.  Galena  &  Chlcatto  U.  R.  Co.     251, 

715 
Lowber,  Tn  re,  r.  New  York  fi2() 

Lowe  1-.  K.  &  K.  Railroad  Co.  20^; 

V.  London    &   Northwestern    R. 

Co.  451,  615 

Lowell  V.  Boston  &  Lowell  R.  Co.       5o'J, 

550,  571) 
Lower  v.  Cliicago,  Burlington,  &  Q. 

R.  Co.  '  28L!,  294 

Lowry  v.  Muldrow  127 

Luckin  v.  Delaware  &  Hudson  C  Co.  505 
Ludlow  r.  Cliarlton  429,  014 

V.  New  York  &  Harlem  R.  Co.      224 
Lumbard  r.  Syracuse,  Binghamtoti,  & 

N.  Y.  R.  Co.  450,  457 

Ijund,  Ex  fidite  154 

V.  Midland  Railway  Co.  241 

Lundy  v.  Central  Pacific  R.  Co.  94 

Luiit  V.  London  &  Northwestern  R. 

Co.  596 

Lycett  V.  Stafford  &  Uttoxeter  R.  Co.  377 
Lycoming  County  v.  Camble  402 

Lyman  v.  Boston  &  Worcester  R.  Co.  470 
V.  Norwich  University  595 

Lvndsay  v.  Connecticut  &  Passumpsic 

■r.  R.  Co.  497 

Lynn  v.  Denton  213 

Lynne  Regis  50 

Lyon  V.  Green  Bay  &  IMinnesota  R. 

Co.  297 

V.  Jerome  248,  298 

V.  New  York  &  New  E.  R.  Co.       456 


M. 

Macedon  &  Bristol  P.  R.  Co.  v.  Lapham  1 94, 

201 
Macgregor  v.  Dover  &  Deal  R,  Co.    26, 

194,  G62 
Mackey  i-.  New  York  Central  R.  Co.  589 
Mackie  v.  Central  Hailroad  Co.  505,  509 
Maclaren  i'.  Stainton  148 

Macon  c.  Macon  &  Western  R.  Co.  242, 

24.3 

Macon  &  Western  R.  Co.  v.  Davis  494,  586 

V.  McConncll  300 

Madilox  V.  Graham  704 

Madison    &    Indianapolis    R.    Co.   v. 

Bacon  655,  571 

»;.  Kane  513 

Mahon  v.  Utica  &  Schenectady  R.  Co.  319 

Mahoney  v.  Atlantic  &  St.  Lawrence 

R.  Co.  637 


Maiden  &  Melrose  R.  Co.  v.  Charles- 
town  419 
Maltby  v.  Northwestern  Virginia  R. 

Co.  164 

Manchester   &  Lawrence   R.  Co.  v. 

Fisk  461 

Manchester  &  Leeds  R  Co.  v.  Regina  424 
Manchester  Bank  ;•.  Allen  61 

Manchester,  Sheffield,  &  L.  R.  Co.  v. 

Great  Northern  R.  Co.  258 

V.  Wallis  486,  526 

r.  Wood  477 

Mangles  i-.  Grand  Collier  D.  Co.  153,  1.56, 

186 
Manley  v.  St.  Helen's  Canal  &  R.  Co.  578 
Manly  v.  Wilmington  &  Weldon  R. 

Co.  585 

Mann  i-.  Central  Vermont  R.  Co.  577 

V.  Cooke  153,  101,  204 

r.  Currie  153,  102,  180 

r.  Great  Southern  &  W.  R.  Co.  278, 

347,  514 

r.  Pentz  157,  162,  168,  183 

Manning  v.  Commissioner  394 

!-.  Eastern  Counties  R.  Co.  394 

Manser  f   Railway  Co.  350 

Mansfield    &    Sandusky    R.    Co.   v. 

V'eeder  4.35 

Mansfield,  Coldwater,  &  L.  M.  R.  Co. 

r.  Stout  201 

Manufacturers'  &  Mechanics'  S.  L.  Co. 

V.  Odd  Fellows  II.  A.  618 

March  v.  Portsmouth  &  Concord  R. 

Co.  342 

Marcott  v.  Marquette,  Houghton,  &  0. 

R.  Co.  584 

Marine  Bank  v.  Ogden  428 

Marion    &    Mississinewa    R.    Co.    v. 

Hodge  615 

Markiiam  ;•.  Brown  88 

Markwell,  K^r  paile  14 

Marlborough   Manufacturing   Co.   v. 

Smith  111,003 

Marriage  v.  Eastern  Connties  R.  Co.    372 
Marrier   v.   St   I'aul,  Minneapolis,  & 

M.  R.  Co.  544 

Marseilles  Land  &  W.  P.  Co.  v.  Aldrich  200 

Marsii  V.  Eastern  Railroad  Co.  660 

r.  New  York  &  Erie  R.  Co.  489 

Marsliall  i\  Baltimore  &  Ohio  R.  Co.  02.5, 

026 
r.  Burton  717 

r.  Queenborough  623 

r.  Stewart  566 

V.  Western  Railroad  Co.  44 

Marson  v.  London,  Chatham,  &  D.  R. 

Co.  309 

Martin  v.  London,  Chatham,  &  D.  R. 

Co.  365 

V.  Police  Board  710 

Maryland  v.  Baltimore  &  Ohio  R.  Co.  591 

V.  Baltimore  &  Potomac  R.  Co.       585 

Maryland  Central  R.  Co.  v.  Newhern  587 

Mason  v.  Brooklyn  &  Newtown  R.  Co.  412 


TABLE   OF   CASES. 


Ixxix 


Mason  r.  Kennebec  &  Portland  R.  Co.  28" 

307,  ;J18 


v.  Stokes  Buy  1'.  &  K.  Co. 
Massaolmsetts  Iron  Co.  r.  Hooper 
Master's  Case 
Mastcrton  r.  IJrooklyii 
Matthews  v.  Delaware  &.  IluJson  C. 

Co. 
Mauilslay,  A'r  paylr 
Maund  r.  .Moiniioutlisliire  Canal  Co. 
Maunsell  v.  Midlaml  (Jreat  W.  li.  Co. 


U'Jl 
112 
154 
4:J:i 

22() 

\i 

54(5 

:n, 

G(j.j 
12G 
5-27 
48t; 


715,  710 
321 


580 


Maxted  i;.  Paine  1 

Mayberry  c.  Concord  Railroad  Co. 

Maynard  v.  Boston  &  Maine  It.  Co 

Mayo  County,  /ii  re 

Mayor  c.  Han(lol[>li 

Mazetti  v.  A'ew   York  &  Harlem  R 
Co. 

McAllister  v.  Indianapolis  &  Cincin' 
nati  K.  Co. 

McAidle  r.  Irish  Iodine  Co. 

McAulay  i;.  Western  Vermont  R.  Co.  301, 

455 

McAuley    v.  Colunibus,   Chicago,  & 
I.  C.  R.  Co. 

McCafEerty    v.    Spnytcn    Duyvil,    & 
P.  M.  R.  Co. 

McCai;;  i'.  Erie  Railway  Co. 

McCail  I'.  Byraui  Manufacturing  Co. 
V.  Clianiberlain 

McCandless  i'.  Chicago  &,  Northwest- 
ern R.  Co. 

MeCann  v.  South  Nashville  R.  Co. 

McCariliv  c.  .Metropolitan  Board 

McClasky  v.  Grand  Rapids  &  I.  Ii.  Co.  IGO 

McCUner  v.  Manchester  &  Lawrence 
R.  Co. 

McClure  r.  People's  Freight  R.  Co 
V.   Philadelphia,    AVilmington 
B.  R.  Co. 

McCluskey  v.  Cromwell 

McCoiinell  i'.  Caldwell 

McCool  V.  Galena  &  Chicago  U.  R.  Co.  5:]1 

McCormaek  r.  Tcrre  Haute  &  Rich- 
mond R.  Co.  348 

McCorniick    v.    Chicago,  Rock   I.  & 

P.  R.  Co.  508 

V.  Kansas  City,  St.  Joseph,  &  C. 

B.  I{.  Co.  344 

V.  Lata  vet te  300 

McCoy  V.  ("aiifornia  &  Pacific  R.  Co.  488 
f.  Harnett  County  680,  Gil-S 

McCroaily  r.  Soutli  Carolina  R.  Co.     471 

McCuliocli  V.  Maryland  4(3 

McCullough  V.  Annapolis  &  Elk  Ridge 
R.  Co.  78 

McDaniels  v.  Flower  Brook  M.  Co.  71,  72 

McDermott  i-.  Hannibal  &  St.  Joseph 
R.  Co. 

McDonnell  v.  Pittsfield  &  North  A.  R 
Co. 

McDougall  I'.  Jersey  Imperial  H.  Co 


& 


173 
G47 


i:83 

530 

470 

47 

502 

400 
001 
3oi) 


200 

93 
457 
71(J 


00  ( 


486 
5.'>, 
13'J 


McDowell  V.   New    York  Central  R. 

Co.  519 

McElroy  v.  Nashua  &.  Lowell  R.  Co.    G40 
MeEwen  v.  Woods  125 

McKarland  v.  Orange  &  Newark  H. 

C.  R.  Co.  412 

Mc(;atri(;k  v.  Wason  507 

.Mc(iinity  r.  New  York  G52 

McGowin  1-.  Remington  127 

Mc(irath  v.  Detroit,  Mackinac,  &  M. 

R.  Co.  522 

Mc(jrei;or  v.  Home  Insurance  Co.        208 
.Mclleiny  r.  Jewitt  72 

Mclleran  r.  .Melvin  716 

Mclniire  v.  State  271 

Mcintosh  i:  Great  Western  R.  Co.        444 
r.  -Midhuid  Counties  R.  Co.  440 

McKee  v.  Grand  Rapids  R.  Co.  450 

Mclvinney  v.    Uhio  &  Mississippi  R. 

Co.  523 

McKissock  v.  St.  Louis,  Kansas  C, 

&  N.  U.  Co.  485 

McKonkey  v.  Chicago,  Burlington,  & 

Q.  R.  Co.  490 

MeLaughlan  v.  Detroit  &  Milwaukee 

R.  Co.  50,  207 

McLaughlin   v.   Charlotte    &    South 

C.  R.  Co.  3-42,  317 

M'Laughlin  v.  Pryor  540 

McLenden   v.  Atlanta  &  West  P.   R. 

Co.  350 

McMahan  v.  Morrison  105 

Mc.Mahon    n.  Cincinnati    &,   Chicago 

S.  L.  R.  Co.  275 

Mc.Manus  r.  Carmichael  338 

V.  Cricket t  544,  545,  547 

McMasters  v.  Commonwealth  275 

r.  Pennsylvania  Railroad  Co.  539 

Mc^Iichael  c  London  &  Northwestern 

R.  Co.  190 

McMillan  v    Mavsville  &  Lexington 

R.  Co.  '  1G3 

I'.  Railroad  Co.  555 

V.  Saratoga  &  Washington  R.  Co.  517, 

557,  508 

V.  Seott  130 

McRae  r.  Russell  187 

r.  Wihn\Mgt(m  &  Weldon  R.  Co.      08 

McRec  )••.  Wilmington  &,  Raleigh  R. 

Co.  207 

McRevnolds  i".  Baltimore  &  Ohio  R. 

Co."  271,278.285,304 

Meacham  v.  Fitchburg  Railroad  Co.     271, 

282,  380 
Mead  »•.  Koeler  58,  (i21 

Meason's  Instate  107 

Meeks  v.  Southern  Pacific  R.  Co.  686 

.Meikel  r.  (Jerman  Sivini;s  F.  S.,  &c.      53 
Mellon  I'.  Western  Railroad  Co.  342 

Mellors  r.  Shaw  557,  571 

Melvin  r.  Lamar  Insurance  Co.  156 

Memphis   &    Charleston    R.     Co.    i". 

Blakeney  48G 

V.  Lyon  4'jO 


Ixxx 


TABLE   OF   CASES. 


Memphis    &    Charleston    R.   Co.   v. 

Orr  480 

V.  Payne  oOl 

Memphis  &  Charlotte  R.  Co.  v.  Bibb    4'.)8 

Memphis  &  Little  U.  R.  Co.  c.  Horstkll  505 

Memphis  Railroad  Co.  v.  Wilcox  442 

Mendon  v.  ('ounty  Commissioners         715 

Mercer  c.  Mc Williams  247,  COU 

V.  Whall  279 

Mercer  &  Somerset  R.  Co.  i'.  Delaware 
&  Bound  B.  U.  Co. 

Mercer  County  v.  Pittsburg  &  Erie  R. 
Co. 

Merchants'  Bank  v.  Shouse 

Merchants'  Line  v.  Waganer 

ISIerchants' National  Bank  v.  Richards  112 

Merriam  v.  Boston,  Clinton,  &  F.  K. 
Co. 

Merrihew  v.  Milwaukee  &  Mississippi 
R.  Co. 

Merrill  v.  Ithaca  &  Owego  R.  Co. 

Merritt  v.  Northern  Railroad  Co. 

Merr}'  v.  Nickalls 

Mersey  Docks  >:  Gibbs 

Mersey  Docks  &  H.  B.  v.  Penhallow 

Metcalfe  v.  Hetherington 

Methodist  Episcopal  Church  y.  Jaques  130 

Metier  v.  Easton  &  Amboy  R.  Co.      211, 

296,  297 

Metropolis  Bank  v.  Guttschlick  429 

Metropolitan  Elevated  R.  Co.  v.  Man- 
hattan Railway  Co.  63,  78, 604 

Metropolitan  Railway  Co.  i^.  Wood- 
house  374,  691 

Me.xican  &  South  American  Co.,  Inre  154 

Meyer  v.  Atlantic  &  Pacific  R.  Co.         505 
'  V.  North  Missouri  R.  Co.  501 

Michigan  Air  Line  R.  Co.  v.  Barnes    274, 
292,  295,  o02 

Michigan  Central  R.  Co.  v.  Dolan  550,  558 
V.  Gilbert  551 

V.  Smithson  500 

Michigan,  Northern,  &  S.  R.  Co.  v. 
Shannon  519 

Michigan  Southern  &  N.  L  R.  Co.  v. 
Fisher  490,  495 


303 

453 
112 

68 


108 

97 
454 
222 
128 
594 
652 
6^.2 


Micklethwait  r.  Winter 
Middlebury  Bank  r.  Edgerton 
Middlese.K  Railroad  Co.  v.  Boston  & 

Chelsea  R.  Co. 
Middlesex  Turnpike  Co.  v    Swan 
Middletown  Bank  >:  Magill 
Midland  Counties  R.  Co.  v.  Oswin 


277 


062 
100 
110 
221, 
395 
Midland  Great  W.  R.  Co.  i'.  Gordon  8,  9. 

153 
Midland  Railway  Co.  v.  Davkin  487 

V.  Great  Western  R.  Co.  636 

Miers  v.  Zanesville  &  Maysville   T. 

Co.  169 

Mifflin   V.    Harrisburg,     Portsmouth, 

>L  &  L.  R.  Co.  322 

Miibank   r.   New   York,   Lake  E.,  & 
W.  K.  Co.  064 


Milburn  v.  Cedar  Rapids,  C.  L,  &  N. 

K.  Co.  327 

Miles  V.  Bough  145,  619 

Miliiau  V.  Sharp  323 

Mill-Dam  Co.  v.  Dane  194 

Miller  V.  Auburn  &  Syracuse  R.  Co.   223, 

319 
V.  Chicago  &  Northwestern  R.  Co.  505 
V.  Ewer  47,  48 

V.  Great  Republic  Ins.  Co.  153 

V.  Illinois  Central  R.  Co.  1-30 

V.  New  York  334,  335 

V.  Pittsburg    &    Connellsville    R. 

Co.  172,  205 

f.  Second  JefTerson  B.  A.  1^3 

r.  Union  Pacific  R.  Co.  556 

Milligan  v.  Wedge  538 

Milner  v.  Field  447 

Mi  hies  V.  Gery  228,  447 

Milnor  v.  Georgia  Railway  &  B.  Co.     435 

V.  New  Jersey  Railro.ul  Co.  269 

V.  Railroad  &  Plank  Road  Cos.       336 

Milton  r.  Clayton  101 

Milwaukee  &  Mississippi    R    Co.   v. 

Eble  275,  298,  511,  513 

Mims  V.  Macon  &  Western  R.  Co.         380 
Miners'  Bank  r.  United  States  44 

Minhinnah  i\  Haines  694 

Minor  v.  Mechanics'  Bank  54 

Minot  V.  Curtis  50 

Mississippi  &  Missouri  R.  Co.  v.  By- 

ington  263 

Mississippi   &   Tennessee   R.   Co.   v. 

Devaney  410 

V.  Harris  105 

Mississippi  Central  R.  Co.  v.  Caruth     342 

V.  .Mason  313 

V.  Miller  505 

Mississippi,  Ouachita,  &  R.  R.  R.  Co. 

V.  Cross  411,  721,  724 

Mississippi  Railway'  Co.  v.  McDonald    271 
Mississippi  River  B.  Co.  i;.  Ring  239,255, 

270,  274 

Missouri,  Kansas,  &  T.  R.  Co.  v.  Long  578 

Missouri  Pacific  R.  Co.  i'.  Cornell  474 

!-.  Kincaid  471 

r.  Lvde  560 

V.  Watts  550,  5.59 

V.  Wilson  491 

Missouri  River,  F.  S.,  &  G.  R.  Co.  v. 

Miami  County  C.  643 

Mitchell  '•.  Crassweller  548 

V.  Illinois  &  St.  Louis  R.  &  C.  Co.  303 
r.  New  York  Central  &  H.  R.  R. 

Co.  588 

V.  Newhall  125 

V.  Rockland  613 

r.  Rome  Railroad  Co,  187,  193 

Mitchil  V.  Alestree  468 

Mix  V.  Lafavette,  Bloomington,  &  M. 

R.  Co.      '  317,  318 

Mixer's  Case,  In  re  610 

Mobile  &    Montgomery    R.    Co.    v. 
Blakely  699 


TABLE   OF   CASES. 


Ixxxi 


Mobile    &    Montgomery    R.   Co.  v. 

Smith  6u6,  5C0 

Mobile  &  Ohio  R.  Co.  v.  Gray  472 

r.  Hudson  486 

r.  Thoiiiiis  &;V.) 

r.  Williunis  484,  402 

Moliawk  ^*c  llmlson  R.  R.  Co.,  In  re        75 

Mohawk  Hrid^e  Co.  r.  Utiua  &  Sciie- 

necrady  K.  Co.  207 

Moisoii  I'.  Great  Western  R.  Co.  i544 

Mokelmniie  Hill  .M.  Co.  v.  VVoodburv     58 
Mold  r.  Wiieatoroft  232,  .308 

Mollett  V.  Robinson  12o 

Monadnock  Railroad  Co.  v.  Felt  5lj 

Moncliet  v.  Groat  Western  R.  Co.  3'.tl 

Money  r.  Macleod  G25 

Money  penny  v.  Hartland  11 

Montlet  V.  Cole  414 

Monklanil  l{ail\vay  Co.  >•.  Dixon  3'J7 

Monnioiithsliire  Canal  Co.  i-.  Harford      2 
Monongaliela  Navigation  Co.  r.  Coons  2'jG, 

2;39,  312 
Monson  v.  PVnno  127 

Montclair  Railway  Co.  v.  Benson  28(5 

Montello,  The  334 

MontjioMiery  &  West  Point  R.  Co.  v. 

VHrner  287 

Montgomery  Southern  R.  Co.  v.  Mat- 
thews 184 
Moody  r.  Corbett                                      397 
Moore  v.  Fitchburg  Railroad  Co.          552 
V.  Great  Southern  &  W.  R.  Co.       354 
V.  Hudson  River  H.  Co.           451,  452 
V.  New  Albany  &  Salem  R.  Co.      196 
V.  Schoppert  44 
Moorlicad  >•.  Little  Miami  R.  Co.  242,410 
Morgan  v.  Rirnie                                       437 
V.  Chicago  &  Alton  R.  Co.               456 
V,  Chicago    &    Northea.-<tLrn    R. 

Co.  282, 295,  383 

V.  Metropolitan  Railway  Co.  '611 

V.  New  York  &  Alhany'll.  Co.        1G8 

V.  Vale  of  Neath  R.  Co.  558 

Morin  v.  St.  Paul,  Minneapolis,  &  M. 

R.  Co.  302,  383 

Morrill  i:  Boston  &  Maine  R.  Co.         G59 

Morris  &  Essex  R.  Co.  v.  Blair  332 

V.  Central  Railroad  Co.  411,  458 

r.  Newark  313,  323 

V.  State  472 

Morris  Canal  &  B.  Co.  v.  Ryerson        3G0 

r.  Townsend  81 

Morrison  r.  Davis  480 

f.  Steam  Navigation  Co.  592 

Morse,  Kr  parte.  277,  679,  (i!»S 

t\  Auburn  &  Syracuse  R.  Co.  549 

V.  l^utland  &  Burlington  R.  Co.      526 

Morss  V.  Boston  &  Maine  R.  Co.  513 

Mortimer  r.  .M'Callan  114 

V.  South  Wales  R.  Co.  39-3 

Morton's  Case  108 

Morton  V.  Barrett  130 

Moshier  v.  Utica  &  Schenectady  R.  Co.  497 

Mount  Washington  R.  Co.,  In  ic  270 

VOL.  I. — / 


Mowatt, /v.r /)<7r/e  13 

V.  Londesborougli  13 

Moyer  i-.  New  York  Central  &,  IT.  R. 

R.  Co.  311 

Mozley  v.  Alston  80,  GJO 

Muldownoy  v.  Illinois  Central  R.  Co.  560 
Muller  r.  Hanover  Junction  It.  Co.  150 
.MuUins  r.  People  715 

Munnna  v.  I'otomac  Co.  1G8 

Munger  i\  Tonawanda  Railroad  Co.     260, 

202,  525 
Munkers  v.  Kansas  City,  St.  Joseph, 

&  C.  B.  R.  Co.  343 

Munkwii/  v.  Chicago,  Milwaukee,  & 

St.  P.  B.  Co.  271 

Munn  I'.  Barnum  124 

Munns  v.  Isle  of  Wight  R.  Co.  302 

Munt  V.  Shrewsbury  &  Chester  R.  Co.  194 

Murch  )•  Concord  Railroad  Co.      0^38,  049 

Murdock's  Ajipeal  0'.i8 

Murphy,  Application  of  151 

V.  Boston  &  Albany  R.  Co.  5'.Xj 

V.  Chicago  226,  oHl 

I'.  Chicago  &  Northwestern  R.  Co.  474 

V.  Deane  589 

V.  Kingston  &  Pembroke  R.  Co.    378 

V.  Western  &  Atlantic  R.  Co.  102 

Murray  v.  Bush  153 

v.  Currie  638 

V.  De  Rottenhain  R30 

i;.  South  Carolina  R.  Co.        417,  494. 

555,  571,  6(H) 

Mutual  Fire  Ins.  Co.  v.  Lowell  145 

Mutual    Savmgs    Bank    v.   Meriden 

Ageiicv  Co.  G22 

Mutual  Union  T.  Co.  v.  Chicago   422,  423 

Myers  r.  Mvers  130 

1-.  Perigal  lOG 

Mynning  v.  Detroit,  Lansing,  &  N.  R. 

Co.  687 

N. 

Napier,  Er  parte 

Narragansett  Bank  i*.  Atlantic  Silk  Co. 
Nash,  A'.r  partp 

Nashville  &  Chattanooga  R.  Co.   i'. 
Anthony 

V.  Cowardin 

V.  Peacock 

r.  Troxlee 

i:  Tyne 
Nashville,  Chattanooga,  &  St.  L.  R. 
Co.  V.  Whcless  55(5, 

Nashville  Railroad  Co.  v.  Cowardin 

V.  Dickerson 
Nason  r.  Woimsni-ket  Union  R.  Co. 
Nathan  r.  Whitlock 
Navlor  r.  Chicago  &  Northwestern  R. 

Co. 
Neal  r.  Pittsburgh  &  Connellsville  R. 

Co. 
Neall  I',  llill 
Nebraska  Railway  Co.  '•.  Van  Dusen 


697 
214 
708 

485 
410 
617 
485 
473 

503 
254 
272 
308 
1(58 

561 

246 
728 
29ti 


Ixxxii 


TABLE    OF   CASES. 


489 

462 
02:5 
(330 


349 
G79 
314 
314 
521 
488 
329 
621 
1^52 
521 
184 


Needham  v.  Santa  Fe  &  San  J.  Tt  Co 
Nellis  V.  New  York  Central  1{.  Co. 
Nelson  (••.  Katon 

r.  Vermont  &  Canada  11.  Co. 
Nesbitt  V.  Louisville,  Cincinnati,  &  C. 

R.  Co.  4;32,  437 

Neuse  River  N.  Co.  f.  Newbern  Com- 
missioners 206 
Neville  v.  Wilkinson                           18,  34 
Nevins  v.  Henderson  11 
Nevitt  V.  Port  Gibson  Bank                    1G8 
New  Albany  &  Salem  R.  Co.  i^.  Con- 
nelly 
V.  Grooms 
V.  Higman 
r.  Huff 
V.  Maiden 
i>.  IMcNamara 
V.  O' Daily 
»•.  Pace 
r\  Pickens 
r.  Tilton 
New  Albany  Railroad  Co.  v.  Fields 
New  Bedford  Turnpike  Co.  v.  Adams  160 
New  Brunswick  &  Canada  R.  Co.,  In  re  691 
New  Brunswick  &  Canada  R.  L.  Co. 

)•.  Muggeridpe  116,610 

New   Hampsliire  Central   R.   Co.   i'. 

Johnson  16:',  174 

^ew  Haven  &  Northampton   Co.   v. 
Hayden 
V.  State 
New  Jersey  Midland  R.  Co.  v.  Van 

Syckle 
New  Jersey  R.  Co.  ?•.  Suydam 
New  London  v.  Brainard 
New  Orleans  &  Carrolton  R.   Co.  v. 

New  Orleans  Second  M. 
New  Orleans  &  Selma  R.  Co.  v.  Jones  245, 

298,  383 
New  Orleans,  Jackson,  &  G.  N.  R.  Co. 
V.  Harris 
V.  Lea 
New  Orleans,  Jackson,  &c.  R.  Co.  v. 

Huglies 
New  Orleans,  Mobile,  &  T.  R.  Co.  v. 

Touline 
New  Orleans,  Opelousas,  &  G.  W.  R. 

Co.  V.  Lagarde 

New  Orleans  Pacific  R.  Co.  i:  Gay  271,  291 

V.  Murrell  296 

New  Orleans  Railroad  Co.  v.  Hughes   556 

New  River  Co.  v.  Johnson  3.54 

New  York  v.  Bailey  539 

V.  Dutchess  &  Columbia  R.  Co.     694 

r.  Furze 

V.  Rochester  &  State  L.  R.  Co, 

V.  Second  Avenue  R.  Co. 

New  York  &  Boston  R.  Co.,  Ex  parte  244 

New  York  &  Brighton  B,  R.  Co.,  /ii  re  330 

New  York  &  Canada  R.  Co.  v.  Gunnison  252 

New  York  &,  Erie  R.  Co.  r.  Skinner    493, 

494,  512,  513,  527 

V.  Young  254 


220 
675 

227 
279 
242 

410 


64 

215 

557 
490 


275 


344 

695 
226 


New  York  &  Greenwood  L.  R.  Co.  v. 

Stanley  305 

New  York  &  Harlem  R.  Co.,  In  re        251 
V.  Forty-second  Street  &  G.  S.  F. 

Co.  581 

New  York  &  Maryland  L.  R.  Co.  v. 

Winans  637 

New  York  &  New  Haven  R  .  Co.  v. 

Ketchum  618 

New  York  &  West  Shore  R.  Co.,  Jn  re  295 
New  York  Central  &  H.  R.  R.  Co., 

In  re  239,  253,  282,  202,  294,  296 

V.  Metropolitan  Gas  Light  Co.        251 

New  York  Central  R.  Co  ,  In  re  262 

v.  Marvin  293 

New  York  City  &E.  R.  Co.  v.  Patrick  182 

New  York  City  &N.  R.  Co.  v.  Central 

Union  T.  Co.  422 

New  York  K.vdiange  Co.  »•.  De  Wolf  159 
New  York,  Lackawanna,  &  W.  R.  Co  , 

In  re  264,271,282,291,295 

New  York,  Lake  Erie,  &  W.  R.  Co. 

V.  Randel  584 

New  York,  West  Shore,  &  B.  R.  Co., 

In  re  288,  318 

Newbold  &  Metropolitan  R.  Co.,  In  re  402 
Newburv  v.  Connecticut  &  Passump- 

sic  R.-R.  Co.  579 

Newijuryport  Bridge  Co.  v.  Story         160 
Newby  v.  Colt's  Patent  F.  A.  Co.  47 

Newcastle  &  Richmond  R.  Co.  v.  Peru 

&  Indianapolis  R.  Co  265 

Newcastle  under-Lyne  &  L.  T.  Co.  v. 

North  Staffordshire  R.  Co.  424 

Newell  V.  Williston  151 

Newport  &  Cincinnati  B.  Co.  v.  L'nited 

States  335 

Newport  Mechanics  Co.  v.  Starbinl         51 
Newry  &Enniskillen  R.  Co.  v.  Coombe  190 
V.  Edmunds  144, 155 

Newry,  &c.  Railway  Co.  v.  Moss  154 

Newton  v.  Belcher  11 

V.  Liddiard  11 

Niagara  Falls  &  L.  0.  R.  Co.  v.  Hotcli- 

kiss  242 

Nicholson  i-.  Erie  Railwaj'  Co.  589 

V.  New  York  &  New  Haven  R. 

Co.  279,  320,  323 

Xicklin  »•.  Williams  595 

Nicol,  Ex  parte  137 

r.  New  York  &  Erie  R.  Co.  261 

NicoU  i;.  New  York  &  Erie  R.  Co.         260 
Nixon  V.  Brownlow  193 

r.  Taff  Vale  R.  Co.  431,  439 

Norfolk  r.  Tennant  391 

Norfolk  &  Western  R.  Co.  v.  Wysor      98 
Norris  ?•.  Androscoggin  Railroad  Co.    498 
r.  Cooper  10 

V.  Irish  Land  Co.  146 

r.  Vermont  Central  R.  Co.  222,  425 
Nortli  American  Colonial  A.  )•.  Bentlev  144 
North  Britfsii  R.  Co.  v.  Tod  406,  689 

North  Carolina  R.  Co.  i-.  Carolina  Cen- 
tral R.  Co.  265 


TABLE   OF   CASES, 


Ixxxiii 


Nortli  Carolina  R.  Co.  r.  Leach  15S,  101 
North  lluJsoii  C.  li.  Co.  c.  lioonK-m 

North  Missouri  R.  Co.  t;.  Gott       241, 

V.  Lackland 

r.  Winkler 
North  Pacific  R.  Co.  v.  Rcj'nolds 
North  Pennsylvania  R.  Co.  v.  Rehman 

North  Siiiehls  Quay  Co.  c.  Davidson 
North  Shore  Ferry  Co.,  In  re 
Nortii  Stafforilsliire  R.  Co.  i'.  Dale 

I'.  Landor 

V.  Wood 
Nortliam,  Bridsje,  &  R.  Co.  u.  London 

&  Southampton  R.  Co. 
Northeast  Railmad  Co.  v.  Payne 
Nortiieastern  Railroad  Co.  v.  Rodri- 
gucs  157,  1G4, 

V.  Sineath  512, 

Nortiieastern  Railway  Co.  v.  Elliott 

Northern  Asaam  Tea  Co.,  lu  re 
Nortliern  Central  R.  Co.  v.  Canton 

County 
Nortliern  Indiana  R.  Co.  v.  Martin 
Nortliern  Pacific  R.  Co.  i;.  Barnesville 

&  Moorhead  K.  Co. 
Northern  Railroail  Co.  »•.  Concord  & 
Clareaiont  R.  Co. 
r.  Miller  IGl, 

r.  Page 
Northumberland    r.    Atlantic    &   St. 

Lawrence  R.  Co. 
Northwestern  Railroad  Co.  v.  Goss 
Northwe.stern    Railway   Co.   r.    Mc- 

Michael 
Norton  v.  London  &  Northwestern  R, 
Co. 
r.  Valentine 
Norwich  v.  Norfolk  Railway  Co. 
Norwich    &   Lowestoft  N.  v.   Theo- 
bald 105, 
Norwich  &  Worcester  R.  Co.  v.  Cahill 

i:  Killiiigly 
Nottingham  v.  Baltimore  &  Potomac 

R.  Co. 
Newell  c.  Andover  &  Red-bridge  R.  Co. 
Noyes  r.   Rutland  &  Burlington    R. 
Co.  54:5, 

V.  Smith  608,  571, 

V.  Spalding  110, 

Nugent  V.  Supervisors 
Nulbrown  r.  Tliornton 
Nutter  V.  Lexington  &  West   Cam- 
bridge 11.  Co. 


O. 


O'Brien  i'.  Pliiladelphia,  Wilmington, 
&  B.  R.  Co.  501,  504 

O'Connor  i-  Chicago,  Milwaukee,  & 
St.  P.  R.  Co.  491 


,198 
2'J7, 
30-J 
294 
^41 
171 
294 
250, 
525 
157 
72 
410 
370 
381 

417 
410 

200 
513 
225, 
315 
111 

223 
518 

383 

234 

104 

04 

590 
532 

189 

225 
343 
002 

174 

420 
418 

317 
014 

047 
573 
114 
102 
120 

173 


O'Connor  v.  Pittsburg  321 

V.  8t.  Louis,  Ivausas  City,  &  N. 

R.  Co.  318 

I'.  Spaight  439 

O'Donald  c.  Evansville,  Indianapolis, 

&  C.  R.  Co.  52 

O'Donnell  i-.  Allegheny  Valley  R.  Co.  508 
O'llara  r.  Lexington  Railroad  Co.  209 
O'Neal  V.  King  175 

Oakes  v.  Oakes  148 

Occidental   Insurance   Co.   i-.   Ganz- 

horn  150 

Ogdensburg  &  Lake  C.  R.  Co.  r.  Ver- 
mont &  Canada  R.  Co.  004,  G37 
Ogdensburg  R;iilroad  Co.  v.  Wolley      172 
Ogdensburg,   Rome,  &  C.   R.  Co.  v. 

Frost  55,  161 

Ogle  V.  Graham  120 

Ohio  &  Mississippi  R.  Co.  v.  Clutter     500 

r.  Collarn  557 

r.  Dunbar  037 

r.  Indianapolis  &  Cincinnati  R. 

Co.  035,  067 

V.  Irvin  502 

i".  Jones  486,  525 

V.  Meisenheimer  525 

V.  Quier  519 

V.  Rowland  622 

V.  Sliaiu-telt  473 

V.  Taylor  503 

Ohio  &  Pennsylvania  R.  Co.  i-.  Wal- 
lace 278 
Ohio,  &c.  Railroad  Co.  v.  Ridge  41 
Oil   Creek  &  A.  R.  R.    Co.  r.  Penn- 

svlvania  Transportation  Co.  005 

Old'  Colony  &  F.  R.  R.  Co.  v.  Ply- 
mouth County  420 
Old  Colony  Railroad  Co.  r.  Evans  128 
V.  Miller  304 
Oldtown  &  Lincoln  R.  Co.  r.  Veazie  175 
Omaha   &    Northwestern   R.   Co.   r. 

Menk  384 

Ontario  &  Quebec  R.  Co.  i-.  Taylor  352 
Oresron  Railway  &  T.  Co.  r.  Oregon 

Re.il  Kstate  Co.  200 

Oregonian  Railway  Co.  v.  Hill  239,  298 
Oriental  Inland  S.  Co.  v.  Rriggs  00,  117 
Orincrod  r.  New  York,  West  Shore, 

&  B.  R.  Co.  ^     333 

Ormond  v.  Holland  601,  671 

Ormsby  v.  Vermont  Copper  M.  Co.  70 
Ornamental  Pyrographic  W.   Co.   v. 

Brown  60 

Orono  V.  We  Igeworth  50 

I  ( )rpeii,  A'.r  parte  1 1 1 

Orr  r.  Bigelow  lU 

V.  Glasgow,  Airdric,  &  M.  J.  R. 

Co.  105.017 

r.  United  States  Bank  OtV 

Osborn  c.  United  Stales  B.  4t> 

Oskaloosa  Agricultural  W.  v.  Park- 
hurst  "^  W 
Oswego  Falls  Bridge  Co.  r.  Fish           242 
Ottawa  I'.  Chicago  &  Rock  I.  R.  Co.     710 


Ixxxiv 


TABLE   OF   CASES. 


Ottoman  Co.  v.  Farley 

630 

Overcnd  v.  Gibb 

614 

615 

Overniyer  v.  Williams 

258 

Overton  v.  Freeman 

538 

Owen  v.  Puniy 

62 

1-.  Van  Later 

614 

Owens  V.  Hannibal   &  St.  Joseph  R. 

Co. 

491 

Owinps  V   Speed 

213 

Oxford,   Worcester,  &  W.  R. 

Co.  V. 

Soutli  Staffordshire  K.  Co. 

258 

Pacific  Railroad  Co.  v.  Brown  496 

V.  Chrystal  275 

V.  Hughes  196 

V.  Renshaw  194 

V.  Seely  632 

Pack  I".  New  York  539 

Paducah  &  Memphis  R.  Co.  v.  Stovall  273 

Page  V.  Heineberg  257 

V.  Milwaukee  &  St.  Paul  R.  Co.     272 

V.  North  Carolina  R.  Co.  49'j 

Paige  V.  Smith  654 

Paine  v.  Hutchinson  131,  140 

Palmer  v.  Denver  &  Rio  Grande  R. 

Co.  560 

V.  Hungerford  Market  361 

V.  Lawrence  162 

V.  Missouri  Pacific  R.  Co.        471,  472 

V.  Woodbury  721 

Palmer  Co.  v.  Ferrill  275 

Pardoc  v.  Price  705 

Parish  v.  Parish  127 

Parker  v.  Adams  586 

V.  Boston  &  Maine  R.  Co.      283,  285, 

308,  401,  579 

V.  Bristol  &  Exeter  R.  Co.  460 

V.  Cutler  Milldam  Co.  333 

V.  Erie  Railway  Co.  546 

V.  Great  Western  R.  Co.  460 

V.  Massachusetts  Railroad  Co.        458 

V.  Perkins  229 

V.  Rensselaer  &  Saratoga  R.  Co.    636 

V.  Smith  721 

V.  Thomas  171,  173 

V.  Wilmington  &  Weldon  R.  Co.  584, 

588,  716 

Parkes,  £'r /ifjrte  712 

V.  Great  Western  R.  Co.  438 

Parks  V.  Boston  272,  363 

I'.  Wisconsin  Central  R.  Co.    274,  304 

Parmelee  v.  Oswego  &  Syracuse  R. 

Co.  380 

Parnaby  v.  Lancaster  Canal  Co.   649,  052 
Parrott  i\  Byers  149 

V.  Eyre  616 

Parsons  r.  Howe  249 

Paterson  &  Newark  R.  Co.  v.  Stevens  334 
Paterson  Gas  L.  Co.  r.  Brady  5.52 

Patten  v.  Northern  Central  R.  Co.        310 


473 
47 

451 

575 
621 
407 
718 
538 
174 

455 

605 
406 

565 


457 

544 
317 


Patton  V.  St.  Louis  &  San  T.  R.  Co. 

Paul  V.  Virginia 

Paulding  (•.  London  &  Northwestern 

R.  Co. 
Paulmie  r.  Erie  Railway  Co. 
Paxton  r.  Popliam 
Payne  v.  Bristol  &  Exeter  R.  Co. 
Peabody  v.  Buentillo 
Peachy  i".  Rowland 
Peake  v.  Wabash  liailroad  Co. 
Pear  c.  Burlington,  Cedar  R.,  &  M.  R. 

Co. 
Pearce  v.  Madison  &  Indianapolis  R. 
Co. 
V.  Wycombe  Railway  Co. 
Pease  v.  Chicago  &  Northwestern  R. 

Co. 

Peavy  v.  Calais  Railroad  Co.  240,  338 

Peck  r.  North  Staffordshire  R.  Co.       476 

I'.  Rush 
Peeples  v.  Brunswick  &  Albany  R. 

Co. 
Pekin  v.  Winkel 
Pell  V.  Northampton  &  Banbury  R. 

Co.  375,  386 

Pendleton  Street  R.  Co.  v.  Shires  102 

Pennsylvania  v  Wheeling  Bridge  Co.  33-5, 

336,  339 
Pennsylvania  &  Delaware  E.  Co.  i'. 

Leuffer  457 

Pennsylvania  &  New  England  R.  Co. 

V.  Ryerson  229 

Pennsylvania  &  New  York  R.  Co.  v. 

Bunnell  271,  288,  305 

Pennsylvania  Bank  I'.  Commonwealth  409 
Pennsylvania  Canal  Co.  r.  Bentley  589 
Pennsylvania  Railroad  Co.'s  Apjieal    149, 

264 
Pennsylvania  Railroad  Co.  v.  Com- 
monwealth 
V.  Duquesne  Borough 
V.  Gorsuch 
V.  Heister 
r.  Keiffer 
V.  Kerr 
r.  Krick 
V.  Lewis 
V.  Porter 
V.  Roney 
r.  Wachter 
V.  Watson 
Pennj',  In  re 
Penobscot    &    Kennebec   R.   Co.   v. 

Dunn  157,  16.3,  175 

Penobscot  Railroad  Co.  v.  Dummer     163, 

172,  174,  175 

V.  White  79,  103,  172,  613 

Pensacola  Telegraph  Co.  v.  Western 

Union  T.  Co.  422 

People  V.  Albany  &  Susquehanna  R. 

Co.  723 

V.  Albany  &  Vermont  R.  Co.      ^  691 
V.  Batchelor  70,  71 

V.  Beebe  677 


318 

462 
423 
295 
29.3 
291 
480 
684 
584 
245 
557 
561 
471 
718 


TACLD   OF   CASES. 


Ixxxv 


People  V.  Benton  435 

V.  Hetts  710 

v.  IJoiinl  of  Delepates  715 

V.  Board  of  IKallli  715,  718.  71'J 

V.  Boston  &  Albany  11.  Co.  41'J 

V.  Brooklyn  234,  274,  275 

r.  Brown  007 

V.  Caryl  85 

V.  Cass  County  090 

V.  Ciiambers  65,  58 

V.  Ciieeseman  54 

V.  Chicago  &  Alton  R.  Co.  417 

V.  Collins  eU7 

V.  Columbia  Common  P.  098 

V.  Dutchess  &  Columbia  K.  Co.  419 
V.  Kverett  078 

V.  Finger  678 

V.  First  Judjre  of  C.  292 

t'.  Geneva  College  48 

V.  Hatcii  697 

V.  Haws  674,  097 

V.  llavdon  JIOO 

V.  Head  073,  710 

V.  Hilliard  718 

V.  Hudson  Commissioners  677 

V.  Jackson  &  Michigan  P.  R.  Co.  402, 
725,  720 
V.  Jillson  85 

V.  Kerr  269,  .327 

r.  Logan  County  69ti 

V.  Louisville  &  Xashville  R.  Co.  414 
V.  McHoberts  291 

V.  Mead  694 

V.  Michigan  Southern  R.  Co.  300 

i>.  New  York  697,  709 

V.  New  York  &  Harlem  R.  Co.      220, 

331 
V.  New  York  Central  &  IL  R.  R. 

Co.  419, 691 

V.  New  York  Central  R.  Co.  692 

V.  New  York,  Lake  E.,  &  W.  R. 

Co.  095 

V.  New  York,  New  Haven,  &  H. 

K.  Co.  419 

V.  North  Chicago  R.  Co.  720 

V.  Northern  Tacific  R.  Co.  709 

V.  Pacific  Mail  S.  Co.  708 

V.  Peabody  719 

V.  Pittsburg  Railroad  Co.  253 

V.  Public  Accounts  A.  675 

V.  Pueblo  County  C.  090 

V.  Rensselaer  &  Saratoga  R.  Co.  335 
V.  Ridgely  721 

V.  River  Kaisin  &  L.  E.  R.  Co.  723 
V.  Rochester  &,  State  L.  R.  Co.  675 
V.  Romert  675 

V.  St.  Louis  835 

r.  Scanuell  724 

V.  Stockton  Railroad  Co.  54 

I'.  Third  Avenue  R.  Co.  o^'.l 

V.  Thompson  710,  723 

V.  Throop  213,  077 

V.  Troy  House  Co.  55 

r.  Van  Alstyne  715 


People  v.  Vanderbilt 

340 

V.  West  Chester  S. 

712 

V.  Wheeler 

715 

i;.  White 

259,  201 

V.  Wood 

713 

Peoria  &  Farmington  R.  Co.  v.  Bar- 

num  285 

Peoria  &  Oquawka  R.  Co.  v.  Elting      163, 

196 
Peoria  &  Pekin  U.  R.  Co.  r.  Peoria  & 

Farmington  K.  Co.  280 

Peoria  &  llock  Island  R.  Co.  v.  Lane  037 
r.  Rice  283 

Peoria  &  Springfield  R.  Co.  i".  Thomp- 
son 665 
Peoria,  Atlanta,  &  D.  R.  Co.  r.  Saw- 
yer                                                2«6,  ."04 
Peoria,  Decatur,  &  E.  R.  Co.  v.  Miller  490 
V.  Schiller                                         520 
Peoria,  Pekin,  &  J.  R.  Co.  v.  Champ    503 
c.  Peoria  &  Springfield  R.  Co.        205 
Peoria  Railroad  Co.  r.  Preston       104,  174 
Perkins  c.  Eastern  Railroad  Co.    487,  527 
i:  Hart                                                 6.32 
V.  Sanders                                55,  58,  61 
Perley  v.  Eastern  Railroad  Co.              480 
Perrin  i'.  Granger                                     100 
Perrine  v.  Chesapeake  &  Delaware 

C.  Co.  242 

Perry  i\  Dubuque  Southwestern  R. 

Co.  509 

V.  Marsh  567 

V.  New  Orleans,  Mobile,  &  C.  R. 

Co.  318 

V.  Simpson  Water  P.  M.  Co.  612 

V.  Southern  Pacific  R.  Co.       472,  481 

Perth  Aniboy  S.  Co.  v.  Parker  57 

Peru  Railroad  Co.  i-.  Ilaskett  617 

Peters   v.    St.   Louis  &  Iron   M.   R. 

Co.  457.  0.33 

Petre  v.  Eastern  Counties  R.  Co.      20,  35 
Pettibone  v.  La  Crosse  &  Milwaukee 

R.  Co.  351 

Pfeifer  v.  Sheboygan  &  Fond  du  Lac 

R.  Co.  352 

Pflegar  v.  Hastings  &  Dakota  R.  Co.  305, 

345 
Phelps  V.  Lyle  80 

Piiene  i'.  Gillan  131 

PhifLT  V.  Carolina  Central  R.  Co.  290 

Philadelphia  &  Erie  R.  Co.  i'.  Atlantic 

&  Great  W.  R.  Co.  670 

1-.  Cake  271,  292 

Philadelpliia  &  Gray's  F.  P.  R.  Co.'s 

Appeal  204 

Philadelphia    &    Reading   R.   Co.   r. 

Carr  687,  588 

V.  Derby  547 

V.  Hendrickson  473,  474 

c.  Kiilips  584 

r.  Pliiladolphia  2C.9 

V.  Sciuiltz  472,  473.  474 

r.  Yeiser  300,  3il6 

V.  Yerger  470 


Ixxxvi 


TABLE   OF   CASES. 


Pliiladtlphia  &  Trenton  R.  Co.  239,  312, 

Philadelphia  &  West  Chester  R.  Co. 

V.  Hickman  186,  204 

Philadelphia,  Gcrmantown,  &  N.  H. 

Co.  V.  Wilt  %,  487,  644,  .547 

Philadelphia  Railroad  Co.  i'.  Trimble  285 
Philadelphia,  Wilmington,  &  B.  R.  Co. 

V.  Co  well  209 

V.  Howard  439,  047 

V.  Kerr  5!  "8 

V.  Maryland  558 

V.  Quigley  551,  G13 

V.  Trimble  511 

Phillips  r.  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  563 

V.  Eastern  Railroad  Co.  208 

V.  Veazie  579 

Phillips  &  Colby  C.  Co.  v.  Seymour     427 

PhcKnix  Life  Assurance  Co.  155 

Physicians  College  v.  Salmon  50 

Pickard  v.  Smith  652 

Pickering  r.  Ilfracombe  Railway  Co.    169 

V.  Stephenson  630 

V.  Templeton  156 

Pieri'.^inel  93 

Pierfe    v.    Worcester  &  Nasliua  R. 

Co.  476 

Piggot  V.  Eastern  Counties  R.  Co.  467, 

468 
Pigott  V.  Great  Western  R.  Co.  297 

Pinkerton  v.  Mancliester  &  Lawrence 

R.  Co.  143,  151 

V.  Manchester  Railroad  Co.  152 

Pinketl  v.  Wrigiit  149 

Pioneer  Paper  Co.,  In  re  73 

Piscataqua  Ferry  Co.  v.  Jones    105,  161, 

173,  186 
Pittsburg  V.  Pennsylvania  R.  Co.         263 
V.  Scott  300 

Pittsburg  &  Connellsville  R.  Co.  i'. 

Clarke  IIL  151 

('.  Stewart  205 

Pittsburg    &    Lake   Erie   R.   Co.   i^. 

Bruce  269 

r.  Robinson  271,273,288 

Pittsburg  &  Steuben  R.  Co.  v.  Hall       286 
Pittsburg,  Bradford,  &  B.   R.  Co.  v. 

McCloskey  270,  272,  274,  510 

Pittsburg,  Cincinnati,  &  St.  L.  R.  Co. 

V  Bowyer  522 

V.  Campbell  468 

V.  Columbus,  Chicago,  &,  1.  C.  R. 

Co.  635 

V.  Culver  472 

i;.  Eby  509 

V.  Hixon  472 

V.  Hunt  484 

V.  .Jones  474 

V.  Laufman  522 

V.  McMillan  485 

V.  Nelson  472 

V.  Noel  473 

V.  Smith  628 


Pittsburg,  Fort  Wayne,  &.  C.  R.  Co. 

V.  Devinney  658 

V.  Dunn  689 

V.  Evans  691 

V.  GiUeland  272,  312 

V.  Powers  665 

Pittsburg,   Virginia,  &  C.  R.  Co.  v. 

Bentley  362 

V.  Rose  286,  305,  317,  318 

Pittsfielu  &  North  Adams  R.  Co.  u. 

Foster  282,  294 

Planche'  v.  Colburn  432,  632 

Plank-Road  Co.  u.  Buffalo  Railroad  Co.  299 
V.  Payne  161 

Plant  V.  Long  Island  R.  Co.  31.3,  319,  322 
Planters'  &  Merchants'  B.  v.  Leavens  107 
Plate  Glass  Ins.  Co.  v.  Sunley  183 

Plate  Manufacturers  v.  Meredith  321 

Piatt  V.  Bright  282 

Plum  I'.  Morris  Canal  &  B.  Co.  321 

Plymouth   Railroad   Co.   v.  Colwell  257, 

412 
Pochelu  V.  Kemper  53 

Poeppers  v.  Missouri,  Kansas,  &  T.  R. 

Co.  481 

Pokr  r.  Ts'ew  York  Central  R.  Co.  496,  515 
Pollard  V.  Hagan  235 

Pollock  V.  Stables  124 

Polly  V.  Saratoga  &  Washington  R. 

Co.  247 

Pomeroy  v.  Chicago  &  Milwaukee  R. 

Co.  329 

Pontchartrain      Railroad      Co.      v. 

Lafayette  &  Pontchartrain  R.  Co.     411 
Poole  V.  Middleton  117 

Pope  V.  Great  Eastern  R.  Co.  377 

Porcher  v.  Gardner  27 

Port  Huron  &  Southwestern  R.  Co.  v. 

Voorheis  295 

Port  of  London  Assurance  C.  C.  74 

Porter  v.  Androscoggin  &.  Kennebec 

R.  Co.  647 

f.  Buckfield  Branch  R.  Co.  433 

V.  County  Commissioners  282 

Portland    &   Ogdensburg    R.   Co.    v. 

Commissioners  296, 719 

Portland    &    Rochester    R.    Co.    v. 

Deering  266 

Portland,  Saco,  &  P.  R.  Co  v.  Graham  164, 

185 
Pott  V.  Flather  126 

Potts  V.  Thames  Haven  D.  &  R.  Co.  30 
Pottstown  Gas  Co.  v.  Murphy  306 

Poulton   V.  London  &  Southwestern 

R.  Co.  652 

Powell  V.  Hannibal  &  St.  Joseph  R. 

Co.  501 

V.  Missouri  Pacific  R.  Co.  584 

V.  Pittsburg,  Cincinnati,  &  St.  L. 

R.  Co.  93 

Power  V.  Savannah  Railroad  Co.  286 

Powers  V.  Bears  292,  301,  350 

r.  Hazelton  &  Setonia  R.  Co.  273 

Powles  i;.  Page  603 


TADLE    OF    CASES. 


Ixxx 


vn 


47(5 
3:j0 
211 

81)'.), 


Poyndcr  v.  Groat  Northern  Tl.  Co.    248.  '  Queen 

300,  SS5,  3»7 
Pratlier  i-.  Western  Union  T.  C(j.  422 

Pratt  V.  Atlantic  &  St.  Lawrence  11. 
Co. 
V.  ButTalo  City  U.  Co. 
Premlergast  v.  Turton 
Presbrey  v.  Old  Colony  &  X.  H.  Co. 

Presbyterian    Society   »•.    Auburn    & 
Roclioster  U.  Co.  318 

Preston  r.  Dubuque  &  Pacific  R.  Co.    2o0 
V.  Eastern  Counties  11.  Co.  313 

V.  Crantl  Collier  1).  Co.  156 

V.  Liverpool,  Manchester,  &  N.  J. 

K.  ( ;o.  10,  28,  30,  30,  220 

V.  Norfolk  Railway  Co.  343 

Price  V.  Dunb.,  R.,  &  C.  U   Co.  128 

i;.  Grand  Rapids  &  I.  R.  Co.  IfJO 

V.  Hannibal  &  St.  Joseph  U.  Co.    500 
II.  New  Jersey  R.  Co.  48'J 

V.  Powell  COO 

V.  Price  107 

Pricliard  v.  La  Crosse  &  Milwaukee 
R.  Co.  495 

Pricket t   v.  Atchison,  Topeka,  &  S. 
R.  Co.  522 

Priest  i:  Hudson  River  R.  Co.  544 

Priestlv  v.  Foulds  423 

V.  Fowler  655,  5'0,  560,  571 

V.  Manchester  &  Leeds   R.  Co.  350, 

nm 

Prospect  Park  &  C.  I.  R.  Co.,  In  re  2'.>5. 

318 
I'.  Williamson  203 

Protzman  v.  Indianapolis  &  Cincin- 
nati It.  Co.  2.iO,  200,  32G 
Provalt  V.  Chicago,  Rock  Island,  & 

P.  R.  Co.  205 

Providence  Bank  i-.  Billings  47,  242 

Provident  Savings  I.  v.  Burnham  53 

Provolt   i\  Chicago,  Rock  Island,  & 

P.  R.  Co.  245,  383 

Pryor  v.  St.  Louis,  Kansas  C,  &  N.  R. 

Co.  491 

Pryse  r.  Cambrian  Railwaj'  Co.  232 

Pryzbylowicz  v.   Missouri   River    R. 

Co.  302,  383 

Pueblo  &  Arkansas  V.  R.  Co.  i-.  Rudd  2!»5 
Pugh  V.  Golden  Valley  R.  Co.  341 

Pulling  V.  London,  Chatham,  &  I).  R. 

Co.  .371 

Pulsf'ord  r.  Richards  20'.t 

Punipelly  r.  (Jrcen  Hay  Co.  237,  230,  275 
Purl  c.  St.  Louis,  Kansas  C,  &  N.  R. 

Co.  588 

Putney  i'.  Cape  Town  R.  Co.  432 


543 


374 
72.3 
070 


.  Birmingham  &  Gloucester 

R.  Co. 
V.  Birmingham  &  Oxford  J.  R. 

Co. 
V.  Blizard 

V.  Bristol  &  Kxoter  R.  Co. 
V.  (^'ambrian  Railway  Co.        857,  'J.VJ 
V.  Di.xon  715 

r.  Kastern  Counties  R.  Co.  2-38,230, 670 
V.  Great  North  of  K.  li.  Co.  540 

V.  Lancashire  &,  Yorkshire  R.  Co.  0«1 
V.  Lofthome  724 

t".  London  &  Greenwich  R.  Co.  370 
I'.  London  &  Southampton  H.  Co.  303 
V.  London  &  Southwestern  \i  Co.  371 
I'.  Manchester  &  Leeds  R.  Co.  077 
V.  North  Union  R.  Co.  357,670 


Q. 


Quarman  i>.  Burnett  538,  639 

Qnayle  v.  Missouri,  Kansas,  &  T.  R. 
Co.  294 


t'.  Norwich  &  Brandon  R.  Co.  G70 
V.  South  Holland  Drainage  C.  720 
V.  Stone  377 

V.  Vaughan  359 

V.  Vaughan  &  Metropolitan  D.  R. 

Co.  401 

V.  Woods  &  Forests  C.  378 

V.  York  070 

t'.  York  &  North  M.  R.  Co.     689,  703 

Quicke,  Ex  parte  691 

Quigley  v.  Central  Pacific  R.  Co.  544 

Quillinan  v.  Canada  Southern  R.  Co.   003 

Quimby  v.  Vermont  Central  R.  Co.     510, 

512,  594,  590,  000 

Quincy  i'.  Chicago,  Burlington,  &  Q. 

R.  Co.  318,  319 

Quincy  Canal  P.  v.  Newcomb  320 

Quincy,   Missouri,  &  P.    R.   Co.    r. 

Ridge  270, 295 

Quiner  v.  Marblehead  Insurance  Co.    110 


R. 


Radcliff  I.-.  Brooklyn  312,  325,  844 

Ragsdale  i'.  Memphis  &  Charleston 

R.  Co.  556 

Raiford  v.  Memphis  &,  Charleston  R. 

Co.  486 

Railroad  Co.,  Kx parte  321 

V.  Boycr  285 

I.'.  Rucher  285 

i;.  Davis  259 

V.  Gilson  272,  278 

?•.  Howard  623 

r.  lluininell  801 

I'.  Johnson  2'.il 

V.  Miami  County  I.  609 

V.  Norton  693 

V.  Olmstead  6'.t0 

V.  Washington  308 

Railroad  Commissioners  v.  Portland 

&  Oxford  V.  R.  Vo.  691 

Railsback  r.  Liberty  <-<:  Abington  T. 

Co.  "  57,  195 

Railstone  v.  I'ork,  Newcastle,  &  B.  R. 
Co.  3i>9,  390 


Ixxxviii 


TABLE  OF  CASES. 


Railway  Co.,  Ex  parte 
V.  Allerton 
V.  Barron 
V.  Cronin 
V.  Gruliiim 
V.  Ileiskell 
r.  Howard 
X'.  Kearny 
i;.  Lawrence 
V.  liaiiney 
V.  Whitton 


698 
66 
649 
456 
163 
628 
486 
424 
322 
563 
689 


Raleijili  &  Augusta  A.  L.  R.  Co.    r. 

Wicker  270,  305 

Kaleigli  &  Gaston  R.  Co   v.  Davis  41,  303 

Kalis  County  C.  r.  United  States  697 

liamsden  i\  Boston  &  Albany  R.  Co.    543 

V.  Dyson  223 

V.  Mancliester,  Soutli  Junction,  & 

A.  R.  Co.  297,  319,  370 

Ranch  v.  Lloyd  503 

liand  V.  T()wnslie!id  395 

('.  Wiiite  Mountain  Railroad  Co.  127 
Randall  v.  Clieshire  Turnpike  Co.  602 
Randle  v.  Williams  719 

Randleson  v.  Murray  539,  540 

Rangeley  v.  Midland  Railway  Co.         2o0 
Ranger  i:  Great  Western  R.  Co.  407,  426, 
434,  438,  443 
Ranken  v.  East  &  West  I.  D.  &  B.  J. 

R.  Co.  385 

Ranson  r.  Stonington  Savings  B.  706 

Raphael  v.  Thames  Valley  R.  Co.         232 
Rapson  v.  Cubitt  538 

Rasmusson  v.  Chicago,   Rock   I.,   & 

P.  R.  Co.  561 

Rathbone  v.  Tioga  Navigation  Co.       222, 

257,  429 
Ray  ?'.  Atchison  &  Nebraska  R.  Co.  384 
Ray  n  e  r,  Ex  pa  rte  116 

Reading  &  Columbia  R.  Co.  v.  Lat- 

shaw  473 

Real  Estate  S.  I.  v.  Fisher  52,  53 

Reaveley's  Case  190 

Redtord  v.  Bagshaw  135 

Redman  v.  Philadelphia,  Marlton,  & 

M.  R.  Co.  302 

Redmond  r.  Dickorson  625 

Reed  r.  Hanover  Brnncli  R.  Co.  296 

Reedie  v.  London  &  Northwestern  R. 

Co.  638,  540 

Reese  r.  Bank  of  Commerce  112 

Reese  River  S.  M   Co.  v.  Smith  210 

Regina  r.  Abrahams  709 

V.   Anibergatc,    Nottingham,    & 

B   R.  Co.  376,  701 

r.  Ambergato  Railwav  Co.  690 

V.  Balbv  &  Worksop  T.  70-5 

V.  Baldwin  702 

r.  Bell  716 

r.  Bingham  712 

v.  Birmingham  &   Gloucester  R. 

Co.  421,694,700 

V.  Birmingham  &  Oxford  li.  Co.  679, 

702 


Regina  i:  Blackwall  Railway  Co.  712 
V.  Bridgeuorth  678 

V.  Brighton  &  South  C.  R.  Co.  678 
V.  Bristol  &  Exeter  K.  Co.  706,  717,  718 
V.  Bristol  Dock  Co.  694,  713 

r.  Burslem  Board  of  H.  680 

V.  Caledonian  Railway  Co.  407,  689, 
6'.i4,  703 
V.  Cambridge  679,  702 

r.  (Chester  676,  698,  699 

r.  Cottle  373 

r.  Dartmouth  678 

V.  Dean  &  Chapter  of  R.  698 

V.  Doptford  Improvement  Co.  704 
V.  Derbyshire,    Staffordshire,    & 

W.  R.  Co.  677 

V.  Dundalk  &  Enniskillen  R.  Co.  692, 

701 
V.  East  &  West  I.  D.  &  B.  J.  R. 

Co.  415,  417,  703 

V.  East  Anglian  R.  Co.  078 

V.  East  Lancashire  R.  Co.  677 

V.  Eastern  Counties  R.  Co.  314,  354, 
357,  393,  424,  677,  678,  687,  690, 
694,  701 
V.  Ely  423 

V.  Fall  678 

V.  Fisher  358 

V.  Frere  92 

V  Gamble  713 

r.  General  Cemetery  Co.  117,  141 
V.  Great  Western  R.  Co.  677,  690,  700 
r.  Greene  679 

i\  Grimshaw  77 

I'.  Hammond  710 

V.  Hampton  722 

V.  Heart  of  Oak  B.  S.  710 

V.  Hopkins  678 

V.  Hull  &  Selby  R.  Co.  705 

V.  Jones  677 

V.  Justices  678 

r.  Justices  of  Warwickshire  677 

V.  Lancashire  &  Preston  R.  Co.  718 
17.  Lancashire  &  Yorkshire  R.  Co.  690, 
700,  701,  711 
I'.  Ledgard  676 

r.  Leeds  &  Liverpool  C.  Co.  711 

V.  Liverpool,  Manchester,  &  N.  R. 

Co.  140,  712 

I'.  London  &  Birmingham  R.  Co.  424, 

695 
V.  London  &  Blackwall  R.  Co.  679 
V.  London  &  Greenwich  R.  Co.  370 
V.  London  &  Northwestern  R.  Co.  .392, 
700,  701,  711,  716 
V.  Londonderry  &  Coleraine   R. 

Co.  144,  709 

V.  Lundie  83 

V.  Manchester  &  Leeds  R.  Co.  379, 
694,  695,  713,  714,  719 
V.  ^Ltriquita  Mining  Co.  214 

V.  Metropolitan  Board  of  W.  .354 

r.  Metropolitan  Sewers  C.  392 

V.  Middlesex  369 


TABLE   OP   CASES. 


Ixxxix 


Regina  v.  Midland  Counties R.  Co.  Ill,  709 
r.  Mtissoii  'MA 

V.  Newcastle-upon-Tyne  (j'.)ii 

V.  Norfolk  Commissioners  041 

V.  Nortli  Midland  K.  Co.  358,  70u 
V.  Norwich  070 

r.  Norwich  Railway  Co.  074 

I'.  Tayii  702 

f.  Pickles  077 

V.  Poole  702 

V.  Kcf;istrar  50 

V.  Revnolds  7r-) 

V.  l{ij}l)y  42  i 

V.  Roch.Iale  &  Halifax  T.  R.  7P2 

I'.  Rochester  O'JB 

I',  v^addlers'  Co.  83,  215,  702 

i;.  Saffron- Walden  R.  Co.  414 

V.  St.  Mar>,'aret3  708 

V.  St.  niaves  717 

V.  St.  Pancras  702 

r.  St.  Peter's  College  07'.) 

r.  St.  Saviour  678 

V.  Sharpe  424 

V.  Sheffield.   Ashton-under-L  ,    & 

M.  R.  Co.  717,718,71'.) 

V.  Sheriff  of  Warwickshire  606 

V  South  Holland  D.  C.  378,  720 
V.  Soutli  Wales  R.  Co.  258 
V.  Southampton  074,  702 
V.  Southeastern  Railway  Co.  35'J,  418 
V.  Stamfonl  700 
V.  Swansea  Harbor  T.                      378 

V  Thames  &  Isis  C.  078 
V.  Townsend  712 
V.  Trustees  of  Luton  R.  0'J3 
V.  United  Kingdom  E.  T.  Co.  422 
V.  Victoria  Park  Co.  166,  705,  713 
1-.  Watcrfonl  Kailway  Co.  251 
V.  West  Midland  R.  Co.  701 
V.  Wilson  711 
i:  Wing  110 
V.  Woods  &  Forests  C.  0'J4 
I'.  Worcestershire  &  Stafford  70'J 
V.  York  &  North  M.  R.  Co.     370,  507, 

6'.t2,  701,  703 

V.  York,  Newcastle,  &  B   R.  Co.     700 

Reichwald  v.  Commercial  Hotel  Co.        76 

Reisner  v.  Strong  283 

1".  Union  Depot  Co.  274,  297 

Reitenbaugh  c.  Chester  Valley  R.  Co.  244, 

275,  270,  278 

Removal  Cases  455 

Remshart  v.  Savannah  &  Cliarlestim 

R.  Co. 
Rensch  v.  Chicago,  Burlington,  &  Q. 

R.  Co. 
Rensselaer  &  Saratoga  R.  Co.,  /;«  re 


V.  Davis 

Rensselaer  &  Washington  P.  R.  Co.  v 
Barton 

Renthrop  i-.  Bang 

Renwiek  v.  Davenport  &  Northwest- 
ern R.  Co. 


384 

342 
512. 
513 
201 

103 

25'.) 

333 


Renwiek  f.  New  York  Central  R.  Co.  501 
Republican  Valley  R.  Co.  v.  Arnold     288 

r.  Hayes  2'JO,  MI 

Reuter  v.  Klectric  Telegraph  Co.  046 

Revere  v.  Boston  Cojjpur  Co.  05 

Rex  r.  Allgood  708 

V.  Amery  61 

f.  Archbishop  of  Canterbury  G'J7 

I'.  Bagshaw  378 

V.  Bank  of  England  697.  707 

V.  Barker  673,  687 

V.  Bishop  of  Chester  675 

r.  Bishop  of  Ely  698,  709 

V   Bishop  of  London  075 

r.  Breton  709,  722 

V.  Cambridge  709 

r.  Clarke  725 

V.  Cockermouth  Inclosure  C.          711 

V.  Colchester  709 

V.  Coin  St.  Aldwins  78 

r.  Commissioners  of  N.  O.  358 

V.  Dean  Inclosure  675 

V.  Doncaster  70 

!'.  Faversham  69 

V.  Fell  717 

V.  Hertford  709 

r.  Highmore  722 

V.  Hostmen  707 

V.  Hungerford  Market  Co.  3G1,  362. 

705 

V.  Jeyes  675 

r.  Justices  of  Kent  717 

V.  Kent  423 

r.  Kerrison  423 

v.  Kingston  676 

V.  Kirke  679 

V.  Lincoln's  Inn  709 

V.  Lindsey  42^1 
?-.  Liverpool  &  Manchester  R.  Co.  302 

V.  London  Assurance  Co.  708 

V.  Lowther  722 

r.  .Martin  58 

V.  May  69 

i».  Mayor  of  Liverpool  378 

r.  M'Kay  722 

r.  Medley  550 

V.  Merchant  Tailors' Co.  707 

r.  Montacute  070 

»'.  .Morris  425 

V.  .Mott  122 

r.  Mousley  723 

r.  Norwich  Roads  T.  378 

V.  Nottingham  Old  W.  395,  007 

r.  Ouse  BiMikC.  702 

I'.  Pagham  821 
V.  Proprietors  of  Birmingham  C.   087 

r.  St.  Catherine's  D.  Co.  705 

V.  St.  Catlierine's  Mall  709 

V.  Saimder*  717 

V.  Severn  i  Wve  R.  Co.  675.  713 

V.  Shelley         '  703 

V.  StalTofd  705 

i:  Stainforth  .<i  Koadby  C.  Co.       711 

r.  Swansea  Harbor  704 


xc 


TABLE  OF  CASES. 


Rex  ».  Tappenden  677 

V.  Taunton  Churchwardens  070 

V.  Thame  070 

V.  Tliatcher  709 

V.  Tower  708 

V.  Tregony  709 

r.  Truro  724 

V.  Turkey  Co.  709 

)•.  Tyrrell  725 

V.  Vice-Chancellor  of  Cambridge     01 
I'.  WaUis  725 

V.  Williams  709,  722 

V.  Worcester  Canal  Co.  140,  140 

1-.  York  702 

V.  York  .Justices  717 

Rexford  v.  Knight  261,  276,  800 

Reynolds  v.  Dunkirk  &  State  Line  R. 

Co.  231 

Rliinebeck&  Connecticut  R.  Co.,  In  re  245 
Rhodes    v.    Utica,   Ithaca,    &    E.    R. 

Co.  529 

Rice  V   Courtis  152 

V.  Dublin  &  Wicklow  R.  Co.  415 

V.  Turnpike  Co.  275 

Rich  V.  Basterfield  639 

Richards  v.  Sacramento  Valley  R.  Co.  51o 

V.  Scarborough  Public  M.  Co.         409 

V.  Swansea  Improvement  &  T.  Co.  274 

V.  Swansea  Tramways  Co.  '570 

Richardson,  Jlx  parte  14 

V.  Boston  337 

V.  Cliicago  &  Northwestern  R.  Co.  509 

V.  Merrill  147 

V.  New  York  Central  R.  Co.  589 

r.  Southeastern  Railway  Co.  389 

V.  Vermont  &  Massachusetts  R. 

Co.  207 

V  Vermont  Central  R.  Co.     312,  321 
Ricbey  r.  Missouri  Pacific  R.  Co.         598 
Richfield  &  New  York  R.  Co. ;;.  Brush  204 
Richmond  v.  North  London  R.  Co.        375 
V.  Sacramento  Valley  R.  Co.  502 

Richmond  &  Danville  R.  Co.  v.  Med- 
ley 474 
Richmond   &   Petersburg  R.   Co.   v. 

Jones  493 

Richmond    Railroad    Co.    v.    Louisa 

Railroad  Co.  265 

Ricker  v.  Fairbanks  435 

Ricket  V.  Metropolitan  Railway  Co.    358, 

357,  300 
Ricketts  v.  East  &  West  L  D.  &  B.  J. 

R.  Co.  486,  527 

Ridgefield  Railroad  Co.  v.  Brush  158 

Ridlt'V  V.  Plymouth,   Stonehouse.  & 

D.  G.  &  B.  Co.  604,  620 

Rine  v.  Chicago  &  Alton  R.  Co.  585 

Ring  V.  Mississippi  River  B.  Co.  382,  .383 
Rio  Grande  Railroad  Co.  v.  Browns- 
ville 316 
Rioter's  Case  675 
Ripley  v.  Sampson  160 
Rippe  V.  Chicago,  Dubuque,  &  M.  R. 
Co.                                                        290 


Robbing,  Ex  parte  705 

V.  Milwaukee  &  Iloricon  R.  Co.    273, 

364 
V.  St.  Paul,  Stillwater,  &  T.  F.  R. 

Co.  295 

Roberts  v.  Bury  Improvement  C.         436 

V.  Button  614 

I'.  Great  Western  R.  Co.  618 

V.  Ohio  &  Mobile  R.  Co.  178 

I'.  I'rice  76 

V.  Read  595 

V.  Smith  667 

Robertson  v.  Knapp  286 

Robinson  v.  Chartered  Bank  110 

V.  Nesbitt  109 

V.  New  York  &  Erie  R.  Co.  314 

V.  Supervisors  715 

Roble  V.  Albia,  Knoxville,  &  Des-M. 

R.  Co.  291 

Robson,  In  re  716 

Rochester  &  Syracuse  R.  Co.  v.  Bud- 
long  272,  280,  290,  292 
Rochester  White  L.  Co.  v.  Rochester  344 
Rockford,  Rock  Island,  &  St.  L.  R. 

Co.  c.  Council  508 

V.  Ilcplin  608 

V.  Irish  496 

V.  Shuiiick  227 

V.  Wills  5a9 

Roe    r.   Birkenhead,   Lancashire,   & 

C  J.  R.  Co.  95 

Rogers.  E.r  parte  64,  677 

V.  Bradshaw  266,  299,  319 

V.  Huntingdon  Rank  111 

V.  Kennebec  &  Portland  R.  Co.      313, 

333 
517. 
531 
717 
105,  110 


V.  Newburyport  Railroad  Co, 

Romaine  r.  Kinshiraer 

Roman  r.  Fry 

Rood  V.  New' York  &  Erie  R  Co.  470 

Rosa  V.  Missouri,  Kansas,  &  T.  R.  Co.   362 

Rose  V.  Truax  626 

Rosenberger  r.  Grand  Trunk  R.  Co.     584 

Rosenthal   v.   Madison,  Indianapolis 

P.  R.  Co.  50 

Rosevelt  v.  Brown  132,  153 

Ross  !'.  Adams  364 

V.  Boston  &  Worcester  R.  Co.        477 

V.  Chicago,  Milwaukee,  &  St.  P. 

R.  Co.  557,  505 

V.  Elizabethtown    &    Somerville 

R.  Co.  282,  286,  297 

V.  Grand  Trunk  R.  Co.  366 

V.  Lafayette   &   Indianapolis    R. 
.  Co.  177 

V.  Madison  646 

Rouch  V.  Great  Western  R.  Co.  439 

Rounds  J'.  Mumford  321 

Rowe  V.  Shilson  425 

Rowlaml,  Kr  parte  697 

r.  C'l-ntreville  Railroad  Co.  456 

Roxbury  v.  Boston  &  Providence  R. 
Co.  231,  232 


TABLE   OF   CASES. 


ZCl 


Royal     British     Bank,     Brockwall's 

Case  20'.) 

Royal  Britisii  Bank,  In  re  GIO 

I'.  Tuniuand  C21,  022 

Hoyal  Exclian^e  Ins.  Co.  v.  Moore       122 
liiibottoni  V.  McCluer  300 

Jliick  V.  Williams  052 

liuffner   v.   Cincinnati,    Ilaniiltnn,  & 

I).  K.  Co.  470 

llundle  I'.  Delaware  &  llaritan  C.  Co.     44 
Ixunyan  v.  Coster  47 

lliijipert  V.  Chicago,  Omaha,  &  St.  J. 

U.  Co.  362 

Ru.sch  I'.  Milwaukee,  Lake  Shore,  & 

W.  R.  Co.  2'.t.'i,  383 

Rush  V.  Burlington,  Cedar  H.,  &  N. 

H.  Co.  383 

Russell  V.  Hudson  River  R.  Co.  501 

V.  St.  Paul,  Minneapolis,  &  M.  R. 

Co.  272 

llnst  V.  Low  520 

Rutherfoord    v.   Cincinnati   &  Ports- 

niouih  R.  Co.  455 

Rutland  &  Burlington  R.  Co.  v.  Proc- 
tor 605 
Ryan  v.  Cumberland  Valley  R.  Co.     555, 

571 
V.  Leavenworth,  Atchison,  &  N. 

R.  Co.  624 

V.  Martin  53 

V.  New  York  Central  R.  Co.  479 

Ryder  v.  Alton  &  Sangamon  R.  Co.     162, 

17'J 


Sabin  v.  Vermont  Central  R.  Co.  305, 

V.  Wood.stnck  Bank 
Sacramento  Railroad  Co.  v.  Moffatt 

Sadd   f.  RLildon,  Witham,  &   B.  R. 
Co.  2.33,  378, 

Safl'ord  V.  Boston  &  Maine  R.  Co. 
Sa^c,  In  re 
Sajjinaw,    Tuscola,    &   H.    R.   Co.  v. 

Cliappeil 
Sagory  c.  Dubois 
St.  Clair  County  T.  Co.  v.  Illinois 
St.  (Jermans  r.  Crystal  Palace  R.  Co. 
St.  .lariK's's  Chib,  In  re. 
St.  John  V.  K.isturn  Railroad  Co. 

I'.  St.  John 
St.  Jolin  &  Maine    R.   Co.   v.   Mont- 
gomery 
St.  Joseph  &  Denver  R.  Co.  v.  Callon- 
der  2'J8, 

V.  Oraver 
St.  Lawrence  Steamboat  Co.,  In  re 
St.  Louis  &  Southeastern  R.  Co.  v. 
Mvrtlo 
I'.  Teters  245, 

St.  Louis,  Alton,  &  C.  R.  Co.  v.  Dalby 
St.   Louis,   Alton,  &  T.  H.  R.  Co.  v. 
South 


30G 
151 
304, 
510 

408 
480 
70'J 

101 

n;2 

267 


14 

552 
34 


508 

310 
4f<4 

7U 

08 

802 

90 

99 


St.  Louis,  Arkansas,  &  T.  R.  Co.  v. 

Aniierson  271,272,304 

St.  Louis  County  C.  r.  Sparks  709 

St.  Louis,  Port  Scott,  &  W.  R.  Co.  v. 

Martin  295 

St.  Louis,  Iron  M.,  &  S.  R.   Co.  v, 

llagan  485 

V.  Morris  841,  342,  344 

1-.  Vincent  490 

St.  Louis,  Jacksonville,  &  C.  R.  Co. 
I'.  Springfield  &.  JS'orih western  R. 
Co.  205 

St.  Louis,  Jersey  ville,  &.  S.  R.  Co.  v. 

Kirby  273, 304 

St.  Louis,  Lawrence,  &  1).  R.  Co.  v. 

Wilder  210,  205.  290,  362 

St.  Louis,  Vandalia,  &  T.  H.  R.  Co. 
V.  Capps 
I'.  Haller 
I'.  Morgan 
V.  Wasliburne 
St.  Louis,    Wichita,  &  AV.  R.  Co. 

Curl 
St  Luke's  Church  v.  Slack 
St.  Mary's  Church 

St.  Paul  &  Pacific  R.  Co.  i'.  Schurmeir  

St.  Paul  &  Sioux  C.  R.  Co.  v.  Murphy  274, 

296 
St.  Paul  Fire  Ins.  Co.  v.  Allis 
St.  Paul  Union  D  Co  v.  St.  Paul 
St.  Thomas  Hospital  v  Charing-Cross 

R.  Co. 
Salem  v.  Eastern  Railroad  Co. 
Salem  &   South  I).  R,  Co.  r.  County 

Commissioners 
Salenj  Mill  D.  Co.  r.  Ropes     15,  104,  100, 

174 
Salisbury  v.  Great  Northern  R.  Co.     320, 

374 

Salomons  v.  Laing  004,  007 

Salter  r.  Metropolitan  District  R.  Co.  309 

I'.  Utica  &  Black  R.  R.  Co.     584,  588 

Sampson  c  Bowdoinham  Steam  .Mill 

Co.  74 

V.  Buffalo,  New  York,  &  P.  R. 

Co.  450 

San  Antonio  ■.  Lewis  429 

San  Krancisco  f.  Spring  Valley  W.  W.  46 
San    Francisco.    Alameda,    &    S.   R. 

Co.  V.  Caldwell  272 

Sanders  v.  St.  Neot's  Union  044 

Sanderson  »•.  Cockerraouth  &  Work- 
ington R.  Co.  228 
Sandham  i*.  Chicago,  Rock  I.,  &  P. 

R.  Co.  491 

Sands  r.  Sanders  144,  145 

Sandusky    &   Cleveland    R.    Co.    v. 

Sloan  500 

Sandwich  r.  Great  Northern  R.  Co.      340 
Sanger  r.  L'pton  1(!7 

SantaCrnz  Railroad  Co.  v.  Schwartz     104 
r.  Sant.i  Cruz  County  C.  01X5 

Sargent  v.  Franklin  Insurance  Co         110, 
111,  112.  140 


318 
818 
490 
632 

G37 

710 

04 

«3 


40 
204 

371 

642 

720 


xcu 


TABLE   OF   CASES. 


Sargent  v.  Webster  69,  78 

Sater  i*.  Burlington  &  Mount  P.  P. 

K.  Co.  272 

Saunders,  ^x  p<7/7e  142 

Savannah  v.  State  712 

Savannali  &  Cliarlestown  R.  Co.  v. 

Callahan 
Savin  c.  Kyhike  Railway  Co. 
Savinjjs  Bank  c.  Davis 
Sawyer  v.  Nortlifield 

V.  Rutland  &  Burlington  R.  Co. 


420 
16 

70 
r)79 
63fi, 
G50 


Saxby  i*.  Manchester,  Sheffield,  &  L. 

R.  Co.  342 

Savers  v.  First  National  B.  5o 
Saylcs  V.  Blane                                 119,  luo 

Sayre  r.  Louisville  Union  B.  A.  88 

V.  North  Western  Turnpike  Co.  44 
Savwood  V.  Memphis  &  Cliarlestown 

R.  Co.  102 

Sc.idding  v.  Lorant  71 
Scaji;gs  V.  Baltimore  &  Washington 

R.  Co.  485,  622 

Scales  V.  Chicago  &  Northwestern  R. 

Co.  715 
Schmidt  v.  Milwaukee  &  St.  Paul  R. 

Co.  521 
Sehneir  v.  Chicago,  Rock  I.,&  P.  R. 

Co.  485 
Schofield   V.  Chicago,  Milwaukee,  & 

St.  P.  R.  Co.  588 

Scliool  Board  v.  People  713 
Schooling  o.  St.  Louis,  Kansas  C,  & 

N.  R.  Co.  499 
Schroeder  v.  Detroit,  Grand  Haven, 

&,  M.  R.  Co.  290,  719 

Schubert  v.  Minneapolis  &  St.  Louis 

R.  Co.  490 
Schuler  c.  Northern  Liberties  &  P. 

T.  R.  Co.  262 
Schurmeier  v.  St.  Paul  &  Pacific  R. 

Co.  277 

Schuylkill  Co.  v.  Thoburn  271 

Schwartz  i>.  Hudson  River  R.  Co.  598 

Scott  r.  Averv  446,  448 

V.  Clark'  721 

V.  Eagle  Fire  Co.  74 

V.  Liverpool  436 

V.  Lord  Ebury  11 

V.  Morgan  670 

V.  Oakely             ^  36 

r.  Pequonnock  National  B.  152 

V.  St.  Paul  &  Cliicago  R.  Co.  200 

V.  Wilmington  &  Raleigh  R.  Co.  485. 

497 
Scottish  Northeastern  R.  Co.  v.  Stew- 
art 29,  37,  003,  691 

Scovill  V.  Thayer  191 
Scripture  v.  Francestown  Soapstone 

Co.  112,152 

Scudder  v.  Woodbridge  565, 

667,  572 

Sea,  Fire,  &  L.  A.  S.,  In  re.  169 

Searle  v.  Lackawanna  Railroad  Co.  310 


Searles  v.  Milwaukee  &  St.  Paul  R, 

Co. 
Seaton  i-.  Chicago,  Rock  L,  &  P.  R. 

Co. 
Seaver  v.  Boston  &  Maine  R.  Co. 

Secombe  v.  Milwaukee  &  St.  Paul 
R.  Co. 
V.  Railroad  Co. 

Security  Loan  A.  v.  Lake 

Sedalia,  Warsaw,  &  S.  K.  Co.  v.  Wil- 
kinson 

Sedilon  v.  Connell 

Seibert  n.  Missouri,  Kansas,  &  T.  R. 
Co. 

Seine  v,  St.  Louis  &  Iron  Mountain 
R.  Co. 

Selma  &  Tennessee  R.  Co.  v.  Tipton 
162,  187, 

Sclma  Railroad  Co.  v.  Anderson 

Seima,  Rome,  &  D.  R.  Co.  v.  Gam- 
mage  296, 
V.  Red  wine 

Semmes  v.  Columbus 

Somple  V.  London  &  Birmingham  R. 
Co. 

Seneca  Railroad  Co.  v.  Auburn  & 
Rochester  R.  Co.  312,  319, 

Senior  v.  Metropolitan  Railway  Co. 

Serandat  v.  Saisse 

Serrell  v.  Derbyshire,  Staffordshire, 
&  W.  J.  R.  Co. 

Severy  v.  Central  Pacific  R.  Co. 

Sewall  r.  Boston  Water  Power 

Sewickley 

Seymour  v.  Maddox  501, 

V.  Sturges.s 

Sliaber  i-.  St.  Paul,  Minneapolis,  & 
M.  R.  Co. 

Shamokin  Valley  &  P.  R.  Co.  v.  Ma- 
lone  107, 

Sliamokin  Valley  R.  Co.  v.  Liver- 
more 

Shand  v.  Henderson 

Sliarp  r.  Great  Western  R.  Co. 

Sharpe  v.  San  Paulo  Railway  Co 

Sharrod  v.  London  &  Northwestern 
R.  Co.  486, 

Shattuck  V.  Stoneham  Branch  R. 
Co. 

Shauk  i".  Northern  Central  R.  Co. 

Shaw  V.  Boston  &  Worcester  R.  Co. 


V.  Fisher  127, 

r.  Holland 

r.  Jewett 

V.  Perkins 

V.  Rowley 

V.  Spencer 
Shears  i-.  Jacobs 
Shedd  !'.  Troy  &  Boston  R.  Co. 
Sheffield,  Ashton-under-Lyne,  &  M. 
R.  Co.  V.  Woodcock  8.  80,  113, 


484 

505 
572. 
GOl 

281 

295 

82 

158 
136 

502 

295 

66, 

,200 

184 

297 
304 
026 

254 

322 
360 
541 

616 
317 
150 
715 
571 
160 

684 

455 

257 
350 
449 
436, 
454 

647 

287 
558 
587, 
596 
128 
126 
586 
677 
118 
150 
609 
94 

179 


TABLE   OF   CASES. 


XCIU 


274 

520 

494 
110 

301 


Sheldon  v.  Hudson  River  R.  Co.  471 

I'.  Minneapolis  &  St.   Louis   R. 
Co. 
SliellabarfTcr  v.  Cliicago,  Rock  I.,  & 

r.  H  Co. 
Sliepard  r.  Buffalo,  New  York,  &  E. 
U.  Co. 
V   Gillespie 
Shepardson  v.  Milwaukee  &  Beloit 

R.  Co. 
Sherman  v.  Milwaukee,  Lake  Shore, 

&  VV.  R.  Co.      282,  208,  316,  389 
V.  New  York  437 

V.  New  York  Central  R.  Co.  G47 

V.  Rochester  &  Syracuse  R.  Co.    G4G, 

655 
V.  St.  Paul,  Minneapolis,  &  M. 

R.  Co.  273.  288 

V.  Vermont  Central  R.  Co.  430 

Shertz  v.  Imlianapolis,  Blooniington, 

&  \V.  R.  Co.  503 

Sherwood  v.  St.  Paul  &  Chicago  R. 

C:<).  288,  3G2 

Sliii)iey  V.  Mechanics'  Bank  61)7 

Shirley  r.  Ferrers  18,  34 

Shoemaker'-.  Goshen  Turnpike  Co.      200 
Shoenberger  v.  Muihollan  285,  380 

Shortridge  v.  Bosauquet  109 

Shrewsbury  v.  North  Staffordshire 

R  Co.  16,  629 

Shrewsbury  &  Birmingham  R.  Co. 

V.  London  &  Northwestern  R.  Co.      27, 

<!;](),  040,  047,  659,  603 

Shrunk  v.  Schuylkill  Navigation  Co.  236, 

321 
Sliuman  i*.  Indianapolis  &  St.  Louis 

R.  Co.  491 

Shurtz  1--.  Schoolcraft  &  Three  Rivers 

R.  Co.  55,  50 

Sibilrud  V.  Minneapolis  &  St.  Louis 

R.  Co. 
Sibley  r.  Quinsigamond  National  B. 
Sigfricd  r.  Levan 

Silk  Manufacturing  Co.  v.  Campbell 
Silkstone  Fall  Colliery  Co.,  In  re 
Sills  V.  Brown 

Silver  Hook  Road  v.  Greene 
Sinims  r.  Memphis,  Clarksville,  &c. 

R.  Co. 
Simondsr.  Chicago  &  Tomah  R.  Co. 
biin[)lot  I'.   Chicago,  Milwaukee,  & 

St.  P.  R.  Co. 
Simpson  v.  Denison  459,  634,  059 

V.  East  Tennessee,  V.,  &  G.  R. 

Co. 
V.  llowden 

V.  Lancaster  &  Carlisle  R.  Co. 
V.  Scottish   Union   F.  &  L.  Ins. 
Co. 
Simpson  r.   South   Staffordshire  W. 

Co.  240 

V.  ^Vestminster  Palace  II.  Co.        629 

Sims  V.  Commercial  Railway  Co.         370 

Sinclair  v.  Pearson  547 


472 
152 
120 
720 
70 
001 
145 

366 
561 

317 


471 

23 

377 

674 


Sioux  City  &  P.  R.  Co.  v.  Finlayson    661 
Sioux  City  li.  Co.  v.  Brown  297 

Sixth  Avenue  K.  Co.  r.  Kerr  330 

Skerratt  r.  North  Staffordshire  R.  Co.  300, 

402,  5<J7 
Skip  V.  Eastern  Counties  R.  Co.  555,  662, 

571 
Skowhegan  &.  Athens  R.  Co.  i;.  Kius- 

man  55 

Skowhegan  Bank  i-.  Cutler  152 

Slater,  /.'r  jxirtf:  1.54 

V.  Emerson  428 

Slaymaker  v.  Gettysburg  Bank  107 

Sleath  V.  Wilson  647 

Sloan  V.  Central  Iowa  11.  Co.  554 

Small  V.  Herkimer  Manufacturing  &, 

11.  Co.  162 

Smalley  v.  Iowa  Pacific  R.  Co.  286 

Smart  r.  Railroad  Co.  301 

V.  Westham  Union  045 

Smcad  v  Lake  Shore  &  M.  S.  R.  Co.  520 
Sn)edis  v.  Brooklyn  &  Rockaway  B. 

R.  Co.  684 

Smith  V.  Allison  411 

V.  Birmingham  Gas  Co.  648 

I'.  Boston  320,  696 

V.  Boston  &  Maine  R.  Co.  203 

V   Chicago  &  Alton  R.  Co.      382,  699 
V.  Chicago  &  Western  I.  R.  Co.    253, 

294 
I'.  Commonwealth  677 

V.  Crooker  120 

V.  Eastern  Railroad  Co.  487 

V.  Erb  676 

I".  Great  Eastern  R.  Co.  653 

V.  Holmer  3U0 

V.  Hull  Glass  Co.  621 

V.  Indiana  oi,  Illinois  R.  Co.  178 

I'.  Law  71 

V.  London  &  St.  Katherine's  D. 

Co.  651 

V.  London  &  Southwestern  R.  Co.  480 
i\  Maryland  335 

v.  McAdam  301 

V.  New  York  &,  Ilarlem  R.  Co.      561, 

050 

V.  Pelah  468 

r.  Potter  557,  563,  504 

V.  Reese  River  S.  M.  Co.  135 

V.  St.  Louis  &  San  F.  R.  Co.  649 

Smoot  V.  Kentucky  Central  R.  Co.       101 

Smyth,  AV  parte  722 

V.  Darley  76 

Sncll  r.  Cottinghani  426 

Snodgrass  r.  (lavit  447 

Snow^  V.  Boston  &  Maine  R.  Co.  288 

r.  Ilousatonic  Railroad  Co.  658 

Snowden  r.  Davis  460 

Snyder  r.  Pennsylv.nnia  Railroad  Co.   307 

r.  Pittsburg,  Cincinnati,  &  St.  L. 

R.  Co.  472 

Society   of  Practical    Knowledge   r. 

Abb'ott  106 

Solomons  i-.  Lang  139 


XCIV 


TABLE   OF   CASES. 


Somerset  &  Kennebec  R.  Co.  v.  Gush- 
ing 177 
Somerset  Canal  Co.  v.  Ilarcourt           307 
Somcrville     &     Easton    R.     Co.    ;•. 

Doughty  271,  272,  270 

Soper  V.  Buffalo  &  Rochester  R.  Co.    60:1 

South  &  North  A.  R.  Co.,  Ex  parte       G74 

V.  Chappell  577 

f.  Jones  4'Jl 

V.  Tliompson  484,  4'JO 

South  Bay  Meadow  D.  Co.  v.  Gray     WA, 

163,  I'JG 
South  Carolina  Bank  v.  Gibbs  4'.» 

South  Carolina  II.  Co.,  Ex  parte  410 

V.  Blake  251,  3G7,  410 

South  Essex  G.  L.  &  C.  Co.,  In  re        G28 
Soutli  Staffordshire  R.  Co.  v.  Burn- 
side  154 
V  Hall                                                 3'Jl 
South  Wales  R.  Co.,  Ex  parte                385 
In  re.  v.  Richards               507,  717,  718 
South  Yorkshire  &  G.  R.  Co.,  In  re      G7(.' 
South    Yorkslure  R.  &  R.  D.  Co.  v. 

Great  Nortliern  R.  Co.        635,  t)36,  664 
Soulliampton  v.  Greaves  213 

Southampton  &  Itchin  B.  Co.  v.  Local 

Board  of  H,  652 

Southeastern  Railway  Co.  v.  Brogden  4."]9 

V.  European  &,  American  T.  Co.   421, 

547 

»'.  Queen  416 

Southern  racific  R.  Co.  v.  Raymond     252 

V.  Wilson  230 

Southern    Pennsylvania    L     Co.    i-. 

Stevens  ]02 

Soutiimayd  v.  Russ  110 

Southwestern  Railroad  Co,  i\  Bald- 
win 710 
Southwestern  Railway  Co.  v.  Coward  389 
Southwick  V.  Estes                                   543 
Southwortli  V.  Old  Colony  R.  Co.         580 
Spacknian's  Case                                     607 
Spackman,  Ex  parte  142 
I-.  Evans                                              608 
V.  Lattimore                                   13,  15 
Sparks  v.  Liverpool  Water  Works        211 
Sparling  v.  Parker  105 
Sparrow  v.  Evansville  &  Crawfords- 

ville  K.  Co.  198 

V.  Oxford,   Worcester,  &  W.  R. 

Co.  240,  370,  375 

Spartanhurgh  &  Union  R.  Co.  v.  De 

Grnffenreid  198 

Spaulding  v.  Cliicago  &  Northwestern 

R.  Co.  471 

r.  Milwaukee,  Lake  S.,  &  W.  R. 

Co.  362 

Spear  I'.  Crawford  102 

V.  Newell  6.32 

V.  Richardson  200 

Speed  V.  Atlantic  &  Pacific  R.  Co.        530 

Spering  v.  Smith  630 

Spinner  v.  New  York  Central  &  H.  R. 

R.  Co.  406,  519 


SpofEord  V.  Bucksport  &,  Bangor  R. 

Co.  253, 294 

Spooner  v.  McConnell  335 

S[)()tliswoode's  Case  11 

Springfield   v.  Connecticut  River  R. 

C"o.  242,  240,  2fJB,  319 

Springfield  &  Illinois  S.  R.  Co.  v.  An- 
drews 401 
Spry  f.  Emperor  460 
Stacey  v.  Vermont  Central  R.  Co.      246, 

303 
Stackpole  v.  Seymour  141 

Stackus  V.  New  York  Central  &  H.  R. 

R.  Co.  688 

Stahl  1-.  Berger  120 

Stainbank  v.  Fernley  135 

Stamps  y.  Birmingham,  Wolverhamp- 
ton, &  S.  V.  R.  Co.  377,  386 
Standish  v.  Liverpool  384 
Stange  v.  Dubuque  Street  R.  Co.  329 
Stanhope's  Case  607 
Stanley  v.  Chester  &  Birkeidiead  R. 

Co.  25 

V.  Richmond  Railroad  Co.  53 

V.  Stanley  132 

Stanton  v.  Wilson  200 

Stnpley  v.  London,  Brighton,  &  S.  C. 

R.  Co.  582,  597 

Stark,  Ex  parte  619 

Starkey  v.  De  Graff  436 

Starr  v.  Child  320 

State  I'.  Ashley  710,  722 

V.  Baltimore  &  Ohio  R.  Co.  240 

f.  Bank  Directors  702 

I'.  Boston,  Concord,  &  JL  R.  Co.     81, 
253,  710 
V.  Bradford  725 

V.  Brown  721,  722 

r.  Campbell  93 

f.  Chester  676 

?-.  Chicago  &  Alton  R.  Co.  716 

I'  Commercial  Bank  723 

V.  Common  Council  710 

?•.  Concord  &  Montreal  R.  Co.        723 
r.  County  Judge  694 

r.  Craig  696 

V.  Davenport  694 

V.  Davenport  &  St.  Paul  R.  Co.     318 
r.  Dawson  62,  303 

V  D.iyton  &  Southeastern  R.  Co.  419 
1-.  Digby  271 

V.  Eastern  &  Amboy  R.  Co.    265,  3G2 
V.  Kinstein  213 

r.  Franklin  Bank  107 

r.  Garretson  303 

V.  Goold  97,  98 

I'.  (lorham  680 

V.  Great  Works  M  &  M.  Co.  548 

V.  Guerrero  141 

t',  Hartford   &   New   Haven    R. 

Co.  692,  693,  713 

V.  Hastings  677 

i".  Hessenkamp  330 

V.  Holiday  697 


TABLIO   OF    CASES. 


XCV 


State  V  Hurlson 

719 

r.  Hudson  Tunnel  U.  Co. 

2'.i4 

V.  Iluntoii 

72.} 

V.  Jenninjrs 

C'Jt) 

I'.  Jersey  City 

715 

V.  Kt'okiik 

6'.i4 

V.  Louisiana  Bank 

74 

V.  Lyncli 

710 

711 

V.  Mansfield  Commissioners 

410 

I'.  Marii'ttii  &  Cincinnati  H 

.  Co. 

(i',i;j 

('.  McHrido 

722 

r.  .Merchants'  Ins.  Co. 

722 

V.  Merry 

722 

r.  Miller 

27o 

V.  Mississippi,  Ouachita,  &  R.  R. 

1{.  Co. 

721 

V.  Morris  &  Essex  R.  Co. 

544 

V,  New  Brunswick  Commission- 

ers 

719 

f.  Norwalk  &  Danbury  T. 

Co. 

410 

f.  Overton 

91,  93 

f.  Paterson  &  Newark  R.  Co. 

B!)o 

I'.  I'ennsylvania  R.  Co. 

079 

I'.  I'ettineli 

108 

r.  Portland  &,  Ogdcnsburg 

R.  Co. 

72t) 

V.  Raine}' 

6!)(i 

I'  Rives 

2.34 

2fil 

V.  Ross 

100 

I'.  St.  Louis  Perpetual  M. 

F,  & 

L.  Ins.  Co. 

722 

r.  Smith 

77 

I'.  Southern  Kansas  R.  Co. 

692 

V.  Thompson 

94 

V.  Tudor 

71 

V.  T\irk 

722 

V.  United   New   Jersey  R 

&,  C. 

Co. 

25.3 

»'.  Van  Ness 

01)8 

f.  Vermont  Central  R.  Co. 

54(i 

1'.  West  Wisconsin  R.  Co. 

72.J 

f.  Wilmington  &  Manchcs 

ter  R. 

t^o. 

042 

State  Board,  &c.  v.  Citizens' 

Street 

R.  Co. 

GOO 

State  Fire  Ins.  Co. 

000 

Stearns  v.  Old  Colony  &  Fall 

R.  R. 

Co. 

517 

Stears  v.  So\ith  Esse.v  C.  L.  &  C.  Co. 

029 

Stehbing  v.  Metropolitan  Boar 

1 

2:;9 

Steel  r.  Southeastern  Kailway 

Co 

^41, 

538,  540 
Steele  r.  Ilarmer  023 

V.  Miilland  Railway  Co.  872 

»».  North  Metropolitan  R.  Co.  0-> 

Steigenberger  r.  dwr  15 

Stein  V.  Indianapolis  Building  A.  5:1 

Steimveg  r.  Frio  K.iilway  Co.  470 

Ste[)hens  c.  De  Medina  124 

Stephenson  r.  Grand  Trunk  R.  Co.       608 
Stetson  r.  Ciiicago  &   Fvanston   R. 

Co.  .'117 

I'.  Faxon  "20 

Stevens  c  Paterson  &  Newark  R.  Co.  3o7 

V.  Rutland  &  Burlington  R.  Co.     193 


Stevens  v.  South  Devon  R.  Co.  07, 640, 668 
Stewart's  ICstate,  /n  re  221 

Stewart  r.  Anglo-California  Cold  M. 

Co.  211 

I'.  Cauty  124,  120 

r.  Hamilton  College  200 

V.  Raymond  R.iilroad  Co.       302,  380 

Stiken)an  c  Dawson  190 

Stiles  ;•.  Western  Railroad  Co.  430 

Stilphin  V.  Smith  85 

Stinson  v.  Chicago,  St.  Paul,  &.  M.  R. 

Co.  280 

Stock's  Case  79 

Stockbriilge  r.  West  Stockbridge  2 

Stockport,  Timperley,  &  A   R.   Co., 

Jn  re  3G0 

Stockton  &  Copperopolis    R.  Co.   v. 

Calgiani  280 

Stockton    &    Darlington    R.    Co.    v. 

Brown  241, 408 

Stockton  &  Hartlepool  R.  Co.  v.  Leeds 

&  Thirsk  R.  Co.  32 

Stock  well  r.  St.  Louis  Mercantile  Co.  108 
Stoddard  c.  Onondaga  Amuial  C.  57 

Stodghill    I'.   Chicago,   Burlington.   &, 

Q  R.  Co.  312,  344 

Stokes  (■  Grissell  414 

r.  Lebanon  &  Sparta  T.  Co.  102 

Stone  V.  Commercial  Railway  Co.       3-jO, 

.•>;0,  376 
v.  Fairbury,    Pontiac,   &   N.    R. 

Co.  317 

Stoneham  Branch  R.  Co.  i-.  Gould       104, 

164,  174 
Stoneman   v.  Atlantic   &   Pacific   R. 

Co.  491 

Storey  v.  Ashton  546 

Stormfeltz  r.  Manor  Turnpike  Co.  242 
Stoyi'stown  Turnpike  Co.  c.  Craver  70 
Strafr(m,  A'r /(fnVe  10'.) 

Stranahan  c.  Sea  View  R.  Co.  410 

Strang  v.  Bcloit  &  Madison  R.  Co.      28.j, 

292 
Strasbnrg  Railway  Co.  v.  Echternacht  30 
Stratford  &  Moreton  R.  Co.  c.  Strat- 

ton  174,177 

Straus  I'.  Eagle  Insurance  Co.  181,  015 
Stra}'  I'.  Kussell  114 

Stringer  i\  Mount  Pleasant  &  N.  R. 

Co.  222 

Stringham  v.  Oshkosh  &  Mississippi 

R.  Co.  253 

Strong,  Ex  parte  076 

V.  Ellsworth  11 

Struthers  r.  Dunkirk,  Warren,  &  P.  R. 

Co.  317 

Stuart  V.  London  &  Northwestern  R. 

Co.  P.0 

Stubbs  r.  Lister  212 

Stublev   c.   London  &  Northwestern 

R.  Co.  697 

Stucke  I'.  Milwaukee  &  Mississippi  R. 

Co.  51.1 

Sturges  V.  Knapp  tJ27 


XCVl 


TABLE   OF   CASES. 


Sturtevant  v.  Milwaukee,  Watertown, 

&  B.  V.  li.  Co.  350 

Sullivan  v.  J'hiladelphia  &  Reading 

R.  Co.  513 

V.  Tuck  127 

Suniniitt  c.  State  87 

Sunbury  &  Erie  R.  Co.  v.  Hummel       30'J 
Susqueliannali  Canal  Co.  v.  Wriglit      236 
Sussex  County  JM.  ins.  Co.  v.  Wood- 
ruff 477 
Sutton  V.  Clark                               321,  G53 
V.  Louisville  275 
r.  Tatliam  124 
Sutton  First  1*.  v.  Cole  61 
Sutton  Harbor  I.  Co.  v.  Hitchins           3'.Jl 
Suydam  v.  Moore                             487,  5U2 
Swainson    v.   Northeastern    Railway 

Co.  565 

Swan  V.  Manchester  &  Lawrence  R. 

Co.  08 

V.  North  British  A.  Co.  11 

Swansea  Harbor  T.,  In  re  401 

Swansea  Vale  Railroad  Co.  v.  Budd    215 
Swarthout  r.  Chicago  &  Northwest- 
ern R.  Co.  475 
Swartout   V.   New    York   Central    & 

H.  R.  R.  Co.  509 

Swatara  Railroad  Co.  v.  Brune  189 

Swayze  v.  New  Jersey  Midland  R. 

Co.  271 

Sweeney  r.  Central  Pacific  R.  Co.        562 
I'.  Old  Colony  &  Newport  R.  Co.  696 
Sweet  V.  Buffalo,  New  York,  &  P.  R. 

Co.  260 

Sweny  v.  Smith  212 

Swinnev  v.  Fort  Wayne,  Muncie,  & 

C.  R.'Co.  2S3,  309 

Symonds  v.  Cincinnati  234,  271 

Syracuse  &  Northern  R.  Co.  i;.  Alex- 
ander 318 
Syracuse,  Bingharaton,  &  N.  Y.  R. 
Co.,  In  re                                                291 


T. 


Taff-Vale  Railway  Co.  v.  Nixon  4.39 

Taft  1-.  Hartford  Railroad  Co.  208 

Taggart  v.  West  Maryland  R.  Co.  105, 172 
Talmadge  v.  Rensselaer  &  Saratoga 

R.  Co.  489 

Tanner  v.  Tanner  148 

Taput  V.  Detroit,  Grand  Haven,   & 

M.  R.  Co.  220 

Tar  River  Navigation  Co.  v.  Neal        162 
Tarbell  v.  Central  Pacific  R.  Co.  85 

Tarrant  v.  Webb  559,  571 

Tate  V.  Missouri,  Kansas,  &  T.  R.  Co.  317 
i\  ( )hio  &  Mississippi  R.  Co.  326 

Tattersall  v.  Grooto  446 

Taunton  r.  Royal  Insurance  Co.  666 

Taunton  &  South  B.  T.  Co.  v.  Whit- 
ing 160 
Tawney  v.  Lynn  &  Ely  R.  Co.  377 


Tayler  v.  Great  Indian  Peninsula  R. 

Co.  143 

Taylor  v.  Chichester  &  Midhurst  R. 

Co.  29,  37,  194 

V.  Clemson  237,  409 

V.  County  Commissioners  282 

V.  Fletcher  181 

t'.  Gay  717 

V.  Griswold  71 

V.  Hughes  no 

V.  Merchants'  Fire  Ins  Co.  202 

V.  New  York  &  Long  B.  R.  Co.     255 

i".  Pliila(lcl{)hia  &.  Reading  R.  Co.  665 

r.  Railroad  Co.  596 

V.  St.  Louis  321 

V.  Southeastern  Railway  Co.  469 

Taylor  &  York  N.  M.  R.  Co.,  In  re       380 

Tebbutt  r.  Bristol  &  Exeter  R.  Co.       543 

Tebo  &  Neoclio  R.  Co.  v.  Kingsherry  270 

Tempest  r.  Kilner  106,  126 

Tenney  v.  East  Warren  Lumber  Co.    706 

Tenny  c.  Tuttle  600 

Terre  Haute  &  Indianapolis  R.  Co 

V.  Clark 

V.  Jones 

V.  McMurray 

V.  Scott 

Terre  Haute  &  Southeastern  R.  Co 

V.  Rodel 
Terre  Haute  Railroad  Co.  v.  Smith 
Terry  v.  Cape  Fear  Bank 

V.  New  York  Central  R.  Co. 
Tew  V.  Harris 
Texas  &  New  Orleans  R.  Co.  v.  Sutor  222 
Texas  &  Pacific  R.  Co.  v.  Chapman     587 

V.  Kane 
Texas  M.  Railroad  Co.  v.  Whitmore 
Thames  Conservators  v.  Pimlico  Rail 

way  Co. 

Thames  Haven  D.  &  R.  Co.  v.  Hall  74,  366 
V.  Rose  75,  77,  80 

Thames  Steamboat  Co.  v.  Housatonic 

Railroad  Co.  548 

Thames  Tunnel  Co.  v.  Sheldon  178 

Thaver  v.  New  Bedford  R.  Co.  346 

V.  St.  Louis,  Alton,  &  T.  H.  R. 

Co. 

V.  Vermont  Central  R.  Co.     430,  431 
Tliicknesse  v.  Lancaster  Canal  Co.      394, 

705 

Thigpen  v.  Mississippi  Central  R.  Co.  173 

Thomas  r.  Hannibal  «Sb  St.  Joseph  R. 

Co. 

V.  Railroad  Co. 

r.  West  Jersey  R.  Co. 

V.  Winchester 

Thompson,  Ex  parte 

V.  Charnock 

V.  Chicago,  Milwaukee,  &  St.  P. 

R.  Co. 

V.  Grand  Gulf  R.  Co.  297,  302 

I'.  Lambert  06 

V.  New  Orle.ans  &  C.  R.  Co.  640 

V.  New  York  &  II.  R.  Co.  242 


684 
491 
655 
316 

383 
622 
196 
488 
400 


660 
560 

342 


523 


532 
635 
267 
650 
677 
446 

556 


TABLE   OP   CASES. 


XCVII 


Thompson  i*.  Thompson 

I'.  West  Somerset  U.  Co. 

Tliorington  v.  Uould 

Thorpe  v.  lluglies 

V.  Rutland  &  Burlington  R.  Co. 

Thurnell  v.  Balbirnie 

Ticonio  Water  1'.  Co.  v.  Lang 

Tilleard,  In  re 

Tillett  V.  Cliaring  Cross  Bridge  Co. 


Tillotson  V.  Hudson  River  R.  Co. 
Tiison  v.  Warwick  Gas-Ligiit  Co. 
Tiinnions  v.  Central  Ohio  R.  Co. 
Tinney  v.  Boston  &,  Albany  R.  Co. 
Tinsman  v.  Helvidere  Delaware  R.  Co. 
Tippets  I'.  Wai]<er 
Titcomb  r.  Fitchburg  Railroad  Co. 
Tobin  V.  Portland,  Saco,  &  P.  R.  Co. 
Todd  V.  Kankakee  &  Illinois  R.  R. 
Co.  271, 

V.  Taft 
Toledo  &  Wabash  R.  Co.  v.  Daniels 

V.  Fowler 

V.  Tiiomas  522, 

Toledo,  Ann  Arbor,  &  G.  T.  R.  Co.  v. 

Diiiilap  220,  283,  285,  296, 

Toledo  Bank  v.  Bond  44, 

Toledo,  Peoria,  &  Warsaw  R.  Co.  v. 

Arnold 

V.  Crane 

V.  Deacon 

V.  Delelianty 

i;.  Johnston  486, 

V.  Lavery 

V.  Logan 

V.  Parker 

I'.  Pence 

I'.  Pinder 

V.  Rumbold 

V.  Sieberus 
Toledo  Railroad  Co.  v.  Munson 

V.  Wickery 
Toledo,    Wabash,   &  W.   R.   Co.   v. 
Asbury 

V.  Barlow 

V.  Chapin 

V.  Colien 

V.  Corn 

V.  Harmon 

i:  Larnion 

V.  Milligan 

V.  Muthersbaugh 

t'.  Nelson 

I'.  Owen 

V.  Rodrigucs 

t'.  Wand 
Tombs  r.  Rochester  &  Syracuse  R.  Co. 
Tomlin  v,  Dubuque  Railway  Co. 
Tomlinson  i'.  Manchester  &  Birming- 
ham R.  Co. 

V.  Tomlinson 
Tommey  v.  Spartanburg  &,  Asheville 
R.  Co. 

VOL.  I.  —  g 


106 

325 
74 

180 
44, 
207 
447 
158 
37 
22,-<, 
2:]2 
345 
700 
508 
500 
313 
107 
424 
050 

273 
128 
523 
52.] 
529 

383 
242 

505 
508 
4!I0 
529 
505 
508 
508 
470 
508 
481 
495 
508 
284 
485 

500 
504 
522 
523 
472 
598 
472 
488 
481 
509 
523 
55:5 
472 
510 
352 

240 
100 

455 


Tonawanda  Railroad  Co.  v.  Munger  488, 

527 
143 


Tooke,  Ex  parte 

Toomcy  v.  London,  Brighton,  &  S.  C. 

K.  Co. 
Torrington  v.  Lowe 
Totten  V.  Pennsylvania  Railroad  Co. 

Touche  V.  Metropolitan  Railway  Co. 
Tower  V.  Providence  &  Worcester  R. 
Co.  488, 

Towie  V.  State 

Towns  I'.  Cheshire  Railroad  Co.    480, 
Townseiid  v.  Ash 

V.  Chicago  &  Alton  R.  Co. 
Townshend  i-.  Susquehanna  Turnpike 

Co. 
Tracy  v.  Elizabethtown  IJailroad  Co. 
V.  Troy  &  Boston  R.  Co. 
?'.  Yates 
Trask  v.  Hartford  &  New  Haven  R. 

Co. 
Tremain  )'.  Cohoes  Co. 
Trenton  Water  P.  Co.  v.  Chambers 

231, 
Trogden  v.  Winona  A,  St.  Peter  R.  Co. 

Troup,  In  re 

Trout   V.   Virginia   &   Tennessee  R. 

Co. 
Trow  i;  Vermont  Central  R.  Co.  493, 
Troxler  v.  Richmond  &  Danville  R. 

Co. 
Troy  V.  Cheshire  Railroad  Co.    319, 


Troy   &   Boston    R.   Co.   u.   Boston, 
Huosac  T.,  &  W.  R.  Co. 
t'.  Lee  272, 

V.  Northern  Turnpike  Co.    280, 

V.  Potter 

V.  Tibbits  101,  188,  200, 

1;.  Warren 
Troy  &  Greenfield  R.  Co.  r.  Newton 
Troy  &  Rutland  R.  Co.  v.  Kerr  162, 

Troy  Turnpike  Co.  v.  McChcsney 

Trustees  v.  State 

Tuckahoe   Canal   Co.   v.   Tuckahoe 

Railroad  Co. 
Tucker  v.  Massachusetts  Central  R. 
Co.  295, 

V.  Seamen's  Aid  S. 
Tunney  v.  Midland  Railway  Co. 
Tuoliey  i'.  Great  Southern  &  W.  R. 

Co. 
Turnbull  c.  Payson 
Turner  v.  St.  Louis  &  San  F.  R.  Co. 
i;.  Sheffield  &  Rotherham  R.  Co. 

Turnpike  Co.  v.  Hosmcr 

V.  Philadelphia  &  Trenton  R.  Co. 

V.  Wallace 
Turnpike  Road  v.  Brosi 


650 
123 
556, 
560 
32 

528 
098 
527 
106 
294 

052 
2.53 
495 
187 

479 
305 

223, 
279 

284, 
296 
665 

492 
592 

472 
320, 
349 

6.35 
279 
293, 
312 
256 
201 
200 
178 
188, 
636 
161 
713 

242 

304 

51 

568 

354 
155 
485 
305, 
350 
410 
471 
44 
368 


XCVlll 


TABLE   OF   CASES. 


Turquand  v.  Marshall  014 
Tutt  V.  Port  lioyal  &  Augusta  R. 

Co.  220 

Tuttle  V.  Micliigan  Air  Line  R.  Co.  05 

Tvroiie  «.t  Cleaitield  R.  Co.  v.  Jones  455 

Tyrrell  v.  Wooliey  614 

Tyson  v.  Soutii  &  North  A.  R.  Co.  560 


U. 


Ullman  v.  Hannibal  &  St.  Joseph  R. 

Co.  539 

Uniback  v.  Lake  Shore  &  M.  S.  R. 

Co.  500 

Unangst's  Appeal  21!) 

Underliill  v.  New  York  &  Harlem  R. 

Co.  497 

V.  Saratoga  &  Washington  R.  Co.  224 
Underwood  v.  Bedford  &  Cambridge 

R.  Co.  870 

V.  Hart  4.30 

Union  Bank  v.  Knapp  214 

i;.  Laird  111 

V.  State  107 

Union  Locks  &  C.  Co.  v.  Towne  192 

Union  National  Bank  v.  Hunt   184,  191, 

213 

Union  Pacific  R.  Co.  v.  Dyche  485 

V.  Schwenck  496 

Union  Railroad  T.  &  S.  Co.  v.  Moore  252, 

274 

Union  Trust  Co.  v.  Cuppy  343 

V.  Kendall  484 

Uniontown  v.  Commonwealth  0'J4 

United  States  v.  Arredondo  242 

V.  Harris  257,  261 

V.  Insurance  Co.  47 

V.  Lincoln  County  697 

V.  Little  Miami  &  C.  &  Z.  R.  Co.    037 

V.  Milwaukee  &  St.  Paul  R.  Co.     335 

V.  New  Bedford  Bridge  335 

V.  Oregon  Railway  &  N.  Co.  237 

V.  Railroad  Bridge  Co.  235,  339 

V.  Robeson  447 

V.  Vaughan  111 

V.  Vernon  County  C.  697 

United  States  Bank  v.  Dandridge  61,  429 

V.  Planters'  Bank  44,  49 

Unity  Insurance  Co.  v.  Cram  59 

University  Trustees  v.  Moody  643 

Untliank  !-.  Henry  County  T.  Co.        104 

UpfiU's  Case  14,  163 

Upton  V.  South  Reading  B.  R.  Co.    271, 

287 
V.  Trebilcock  184 

Utica    &     Schenectady    R.    Co.    v. 

Brinkerhoff  170,  201 

Utica  Bank  v.  Ilillard  214 

V.  Smaller  1 1 1 

Utica  Railroad  Co.,  In  re  272 

Utley  V.  Donaldson  64 

Utter  V.  Crane  456,  457 


V. 


Vail  V.  Hamilton 

I'.  Morris  &  Essex  R.  Co. 


72 
281,  285, 
293 
Valley  Railway  Co.  v.  Bohm  252,  283,  342 
Valtez  V.  Ohio  &  Mississippi  R.  Co.      556 
Vandegrift  v.  Rediker  490,  .527,  592 

Vanderbilt  v.  Richmond  Turnpike  Co.  540 
Vanderkar  v.  Rensselaer  &  Saratoga 

R.  Co.  510,  527 

Vanderwerker  v.  Vermont  Central  li. 

(^o.  430 

Vanegrift  v.  Railway  Co.  549 

Vanlieur  v.  Grand  Trunk  R.  Co.  344 

Van  Iloozier  v.  Hannibal  &  St.  Joseph 

R.  Co.  344 

Van  Horn  v.  Burlington,  Cedar  R.,  & 

N.  R.  Co.  499 

Van    Orsdol   v.   Burlington,    Cedar 

Rapids,  &  N.  R.  Co.  843 

Van  Size  v.  Long  Island  R.  Co.  383 

Vantrain  v.  St.  Louis,  Iron  M.,  &  S. 

R.  Co.  565 

Van  VVickle  v.  Camden  &  Amboy  R. 

Co.  245,  282,  292 

Varco  V.  Chicago,  Milwaukee,  &  St. 

P.  R.  Co.  508 

Varick  v.  Edwards  130 

Varillat  v.  New  Orleans  &  C.  R.  Co.  596 
Varner  v.  St.  Louis  &  Cedar  Rapids 

R.  Co.  220 

Varrick  v.  Smith  234 

Vaughan  v.  Taff  Vale  R.  Co.  409 

Vaughn  v.  Gunmakers'  Co.  685 

Vau.xhall  Bridge  Case  34 

Vauxhall  Bridge  Co.  r.  Spencer  17, 18,  22 
Vawter  i-.  Ohio  &  Mississippi  R.  Co.  191 
Veazie  v.  Mayo  226,  327 

V.  Penobscot  Railroad  Co.        329,  418 
Veerhausen  v.  Chicago  &  Northwest- 
ern R.  Co.  527 
Vermilya  i'.  Chicago,  Milwaukee,  & 

St.  P.  R.  Co.  463 

Vermont  &  Canada  R.  Co.  v.  Vermont 

Central  R.  Co.  239 

Vermont  &  Massachusetts  R.  Co.  v. 

Fitchburg  Railroad  Co.  654 

Vermont  Central  R.  Co.  v.  Baxter       248, 

254,  038 
V.  Burlington  410 

t-.  Clayes  200 

r.  Hills  225 

Vicksburg  &  Jackson  R.  Co.  v.  Pat- 
ton  402 
Vicksburg  &  Meridian  R.  Co.  M.Dixon  522 
Vicksburg,  Sbreveport,  &  T.  R.  Co. 

V.  McKenn  153,  171,  180,  188 

Victory  v.  Fitzpatrick  349 

Vilas  I'.  Milwaukee  &  Mississippi  R. 

Co.  220,  351 

Vilhae  v.  Stockton  &  lone  R.  Co.  298 

Vinal  V.  Dorciiester  579 

Violet  V.  Simpson  595 


TABLE   OF   CARES. 


XCIX 


Vissclicr  V.  Hudson  River  R.  Co.  388 

Von  ScliMiiiit  V.  lluiitington  65 

Vose  V.  Grant  108 

Vreeland  v.  New  Jersey  Stone  Co.  184 


W. 


Wabash  Railroad  Co.  v.  Ilenka  584 

V.  iMcDaniels  557 

Wabasli,   St.   Louis,  &  T.   R.  Co.  v. 

Fell  ton  500 

r.  PevtDii  574 

V.  ShMcklet  641) 

r.  Wallace  684 

Wadliams  i>   Lackawanna  &  Blooms- 

burjj  R.  Co.  301 

Wagner  v.  Long  Island  R.  Co.  344 

Waiiiwrijjfbt  v.  Ramsden  303 

Waitniaii,  I'Jr  parte  147 

Wakefield  v.  Hosion  &  Maine  R.  Co.     285 
V.  Connecticut  &  Passumpsic  R. 

R.  Co.  586 

Waldo  V.  Ciiicago,  St.  Paul,  &F.  R.  Co.  289 

V.  Martin  025 

Waldron  v.  Portland,  Saco,  &  P.  R.  Co.  488 

I'.  Rensselaer  &  Saratoga  R.  Co.    487 

Walker's  Case  111 

Walker.  Ex  parte  147,  (L'9 

V.  Bartlett  11!),  131 

I'.  Boiling  507 

V.  Boston  &  Maine  R.  Co.       236,  270, 

282,  330,  563 

V.  Chicago,  Rock  Island,  &,  P.  R. 

Co.  383 

V.  Detroit  Transit  R.  Co.        120,  003 

V.  Devereaux  50,  157 

V.  Eastern  Counties  R.  Co.  228 

r.  Great  Western  U.  Co.  553 

V.  London  &  Blackwall  R.  Co.       30'J, 

376,  005 

V.  Milne  100 

V.  Mobile  &  Ohio  R.  Co.  173 

r.  Old  Colony  &  N.  R.  Co.       272,  30'.) 

V.  Southeastern  Railway  Co.  97 

V.  Ware,  Hadhatn,  &  B.  R.  Co.       240 

Wallace  v.  Loom  is  46 

t'.  Townsend  158 

Wallingford  Manufacturing  Co.  v.  Fox  11 

Wallis  V.  St.  Louis,  Iron  M.,  &  S.  R. 

Co.  491 

Walstab  v.  Spottiswoode  13 

Walter  v.  Holding  677 

Waltham  Bank  v.  Waltham  107 

Walworth  r.  Brackctt  54 

Wank'ss  v.  Northeastern  R.  Co.  597 

Wansbcck  Railway  Co.,  In  re  426 

Warburton  i».  Great  Western  R.  Co.     574 
Ward  V.  Griswoldville  Manufacturing 

Co.  102 

V.  Londesborough  13 

r.  Lowndes  680.094,700 

V.  Paducah  &  Memphis  R.  Co.        508 
V.  Southeastern  Railway  Co.  116 


Warden  v.  Union  Pacific  R.  Co.  624 

Ware  v.  Grand  Junction  W.  65 

V.  Regent's  Canal  Co.  358,  400 

Waring  i^.  Cheraw  &  Darlington  R. 

Co.  367 

V.   Manchester  &  Sheffield,  &  L. 

R.  Co.  4.39 

Warner  r.  Baltimore  &.  Ohio  R.  Co.      508 
V.  C^alleiider  1'j6 

i;.  Erie  Railway  Co.  558 

r.  Mower  70 

J,'.  New  York  Central  R.  Co.  597 

V.  Sandusky,  &,c.  Railroad  Co.        220 
V.  Western  North  ('.  R.  Co.  559 

Warren  r.  Fitchburg  Railr(jad  Co.         589 
V.  Keokuk  &  Des  Moines  R.  Co.    528, 

532 

I'.  St.  Paul  &  Pacific  R.  Co.     296,  297 

V.  State  329 

Warren  Railroad  Co.  v.  State  418 

Warring  v.  Williams  120 

Washburn  v.  Milwaukee  &.  Lake  W. 

R.  Co.  285 

Washer  v.  Allensvillc  Turnpike  Co.      155 
Washington  v.  Baltimore  &  Ohio  R. 

Co.  492,  496 

Wasiiington   &   Baltimore   T.    R.    t-. 

State  726 

Washington  Cemetery  v.  Prospect  Park 

&  C.  I.  R.  Co.  318 

Washington,  Cincinnati,  &  St.  L.  R. 

Co.  y.  Switzer  286 

Wasmer  v.  Delaware,  Lackawanna,  & 

W.  R.  Co.  637 

Waterbury  v.  Hartford,  Providence, 

&  F.  R.  Co.  698 

Waterford,  Wexford,  W.,  &  D.  R.  Co. 

V.  Dalbiac  174 

V.  Pidcock  183 

Waterloo  Presbyterian  S.  v.  Auburn 

&  Rochester  R.  Co.  43 

Waterman  v.  Connecticut  &  Passump- 

sic  R.  R.  Co.  314,  360 

V.  Troy  &  Greenfield  R.  Co.  205 

Waters  v.  Moss  5(>2 

I'.  Quimby  552 

Watkins  v.  Great  Northern  R.  Co.       250, 

348,  349 
Watson  t).  Milwaukee  &  Madison  R. 

Co.  273,  280,  .302 

V.  New  York  Central  R.  Co.  283 

V.  New  York,  West  S.,  &  B.  R. 

Co.  384 

»•.  Pittsburg  &  Connellsville  R.  Co.  .■>02 

V.  Reid  2:50 

Watts  r.  Porter  109 

I-  Salter  13,  14 

V.  Watts  130 

Waukon  Railroad  Co.  r.  Dwyer  144 

Webb  V.  Direct  London  .i  P.'R.  Co.      30, 

228 

V.  Manchester  &  Leeds  R.  Co.       2.39, 

240.  248.  377,  601 

r.  Portland  &  Kennebec  R.  Co.      589 


TABLE  OP  CASES. 


Webber  v.  Eastern  Railroad  Co.  289 

Wedgewood  v.  Chicago  &  Nortliwest- 

eni  \i.  Co.  560 

Weeden  v.  Lake  Erie  &  Mad  R.  R. 

Co.  205 

Weger  v.  Pennsylvania  Railroad  Co.  558 
Weld  V.  Southwestern  Railway  Co.     374, 

413 
Welland  Railway  Co.  v.  Berrie  166 

Wellcome  v.  Leeds  581 

Welles  V.  Cowles  107 

Wells  V.  Howell  526 

V.  Somerset  &  Kennebec  R.  Co.     2o7 
Welsch  V.  Hannibal  &  St.  Joseph  R. 

Co.  584 

Welsh  V.  Chicago,  Burlington,  &  Q. 

R.  Co.  484 

Welty  V.  Indianapolis  &  Vincennes  R. 

Co.  509 

Wentz  V.  Erie  Railway  Co.  98 

Wert  V.  Crawfordsville  Turnpike  Co.  184 
West  V.  Milwaukee,  Lake  Shore,  & 

W.  R.  Co.  297 

V.  Railroad  Co.  541 

V.  St.  Louis,  Vandalia,  &  T.  H. 

R.  Co.  539 

West  Branch  Canal  Co's  Appeal  112 
West  Cornwall  R.  Co.  v.  Mowatt  153 

West  Jersey  R.  Co.  v.  Cape  May  & 

S.  L.  R.  Co.  725 

West  London  R.   Co.   v.   London  & 

Northwestern  R.  Co.  6-54 

West  Philadelphia  Canal  Co.  v.  Innes  180, 

183 
West  River  Bridge  v.  Dlx  263,  264,  268 
Westchester  Railroad  v.  Miles  101 

Western  &  Atlantic  R.  Co.  v.  Jones      491 
V.  Mc.Cauley  605 

Western  Maryland  R.  Co.  v.  Owings  350 
Western  Pennsylvania  R.  Co.  v.  Hill  356 
Western  Railroad  Co.  v.  Babcock  230 
Western  Union  R.  Co.  v.  Smith  414,  425 
Western  Union  T.  Co.  v.  American 

Union  T.  Co.  422 

V.  Burlington  &.  Southwestern  R. 

Co.  422 

V.  Rich  422 

Weston's  Case  116 

Weston  V.  Bennett  429 

V.  Foster  259 

Westropp  V.  Solomon  122 

Wetmore  v.  Story  323 

Wevant  v.  Kew  York  &  Harlem  R. 

Co.  567 

Weyer  v.  Milwaukee  &  Lake  W.  R. 

Co.  296 

Whaalan  i;.  Mad  River  &  Lake  E.  R. 

Co.  564,  572 

Wheeler  v.  Rochester  &  Syracuse  R. 

Co.  260,  308,  511 

Wheeling,  Pittsburg,  &  B.  R.  Co.  v. 

Gonrley  220 

Wheelock  v.  Moulton  12,  107 

V.  Young  248 


Whitacre  v.  St.  Paul  &  Sioux  City  R. 

Co.  297 

Whitcomb  i;.  Vermont  Central  R.  Co.  221, 

313 

White's  Case  685 

White  r.  Boston  &  Providence  R.  Co.  349 

V.  Brown  476 

V.  Charlotte  &  South  Carolina  R. 

Co.  271 

V.  Concord  Railroad  Co.  290,  512 

V.  Fitchburg  Railroad  Co.  287 

V.  Nashville  v.  Northwestern  R. 

Co.  383 

V.  San  Rafael  &  San  Q.  R.  Co.       430 
V.  South  Shore  R.  Co.  309 

V.  Vermont  &  Massachusetts  R. 

Co.  121 

White  Mountains  Railroad  Co.  v.  East- 
man 78,  157,  163,  175 
White  River  Bank,  In  re  710 
White  River  T.  Co.  v.  Vermont  Cen- 
tral R.  Co.  263,  265,  319 
White  Water  V.  R.  Co.  v.  Quick  485 
Wliitehouse  v.  Androscoggin  Railroad 

Co.  305,  306 

V.  Fellowes  652 

Whiteman  v.  Wilmington  &  Susque- 
hanna R.  Co.  544 
Whiteside  v.  United  States  64 
Whitfield  V.  Southeastern   R.  Co.     551, 

613 

V.  Zellnor  428 

Wliitford  V.  Laidler  643 

Whitman  v.  Boston  &  Maine  R.  Co.     222, 

227,  270,  284 

Whitmarsh  Township  v.  Philadelphia, 

G.,  &  N.  R.  Co.  696 

Whitney  v.  Atlantic  &  St.  Lawrence 

R.  Co.  515 

Whittaker  v.  Boston  &  Maine  R.  Co.  590 
Whittier  v.   Chicago,   Milwaukee,  & 

St.  P.  R.  Co.  509,  528 

)■.  Portland  &  Kennebec  R.  Co.      313 
Whitwell  V.  Warner  16,  602,  612 

Wiggctt  V.  Fox  567,  573 

Wiggin  V.  Freewill  Baptist  Society  69 
Wight  V.  Shelby  Railroad  Co.     157,  185, 

188 
Wigmore  v.  Jay  555,  571  ' 

Wilcox  V.  Rome  &  Watertown  R.  Co.  589 
Wilder  V.  Maine  Central  R.  Co.  496,  508 
Wiley  V.  Moor  120 

V.  West  Jersey  R.  Co.  473 

Wilkin  V.  St.  Paul,  Stillwater,  &  T. 

F.  R.  Co.  296 

Wilkins  v.  Roebuck  609 

Wilkinson  v.  Anglo-California   Gold 

Co.  140 

V.  Lloyd  109,  113,  126 

Willard  i".  Newbury  579 

Willcocks,  Ex  parte  72,  78 

Willey  r.  Southeastern  Railway  Co.     385 
Williams  i\  Androscoggin  &  Kenne- 
bec R.  Co.  428 


TABLE   OF   CASES. 


CI 


Williams  v.  Archer  126 

V.  Chester  &  Holyhead  R.  Co.  421) 
V.  County  Court  713 

V.  Great  Western  Railway  Co.  80 
V.  Hartford  &  New  Haven  K.  Co.  244 
V.  Jones  541,  705 

i;.  Michigan  Bank  45 

V.  Michigan  Central  R.  Co.    488,  490. 

527 
V.  Natural  Bridge  V.  R.  Co.  320 

V.  New  Albany  iSt.  Salem  R.  Co.  517 
V.  New  Orleans,  Mobile,  &  T.  R. 

Co.  205 

V.  New  York  Central  R.  Co.  234,  31'.), 

:;21,  323,  325,  513 

V.  Northern  Pacific  R.  Co.  492 

V.  Parker  208 

V.  Pigott  11 

V.  St.  George's  Harbor  Co.        12,  32 

V.  South  Wales  R.  Co.  377 

I'.  Western  Union  R.  Co.  2G0 

Willing  V.  Baltimore  Railroad  Co.        292 

Wills  V.  Bridge  117,  120 

V.  Murray  70,  77 

Willson  V.  Blackbird  Creek  M.  Co.      335, 

33ti 
Willyard  v.  Hamilton  300 

Wilmes  y.  Minneapolis  &  Northwest- 
ern R.  Co.  274 
Wilmington  &  Manchester  R.  Co.  i'. 

Saunders  61 

Wilmington  &  Raleigh  R.  Co.  v.  Robe- 
son 171 
Wilmington  &  Reading  R.  Co.  v.  High  295 
V.  Stauffer  272,  472 
Wilmot  V.  Coventry  623 
Wilsey  v.  Louisville  &  Nashville  R. 

Co. 
Wilson  I'.  il'Una  Insurance  Co. 
i;.  Anderson 

V.  Cunningham  2 

V.  European  &  North  A.  R.  Co. 
V.  Goodman 
V.  Keating 
V.  Merry 
V.  Miers 
V.  Jtailroad  Co. 
V.  West  Hartlepool  II.  &  R.  Co. 


97 
447 
2 
595 
3G2 
61G 
155 
602 
614 
494 
611, 
647 
145 

80 
437 


V.  Wils  Valley  R.  Co. 
V.  Wilson 

V.  York  &  Maryland  L.  R.  Co. 
Winch  v.  Birkenhead,  Lancashire,  &. 

C.  J.  R.  Co.  639 

Winchester   v.    Mid-Hants    Railway 

Co.  302,  380 

Winchester  &    Potomac   R.   Co.   i;. 

Washington  293 

Winona  &  St.  Peter  R.  Co.  r.  Den- 
man  273,  277 
V.  Waldron  270 
Winter  i-.  Muscogee  Railroad  Co.        Vx\ 

194 
Winterbottom  v.  Wright  649 


Wisconsin  Central  R.  Co.  v.  Cornell 

University  253 

Witherell  v.  Milwaukee  &  St.  Paul  R. 

Co.  491 

Witmer  v.  Schlatter  15 

Witter  V.  Cross  411 

Wolfe  V.  Covington  &  Lexington  R. 

Co.  313,  319 

Wolverhampton    New     W.     Co.    v. 

Hawksford  14.  158 

Wonder  v.  Baltimore  &  Ohio  R.  Co.     672 
Wood  /-.  Auburn  &  Kocliester  R.  Co.   008 
V.  Coosa  &  Chattooga  River  R. 

Co.  104 

v.  Duke  of  Argyll  16 

r.  Dunmier  167 

I'.  Epsom  &  Leatherhead  R.  Co.    376 
V.  McCann  626 

V.  North  Staffordshire  R.  Co.  425 

V.  St.   Louis,  Kansas  C,  &,  N.  R. 

Co.  505 

i;.  Stourbridge  Railway  Co.  360 

V.  Vermont  Central  R.  Co.  454 

Wood  Hydraulic  M.  Co.  v.  King  70 

Woodfin  v.  Asheville  Mutual  Ins.  Co.     86 

Woodfolk  y.  Nashville  &  Chattanooga 

R.  Co.  275 

Woodman  i\  Joiner  641 

Woodruff  r.  Erie  Railway  Co.       03-5,  637 
Woods  V.  Pittsburg,  Cincinnati,  &  St. 

L.  R.  Co.  455 

Woodstock  r.  Gallup  673,716 

Woodworth  v.  St.  Paul,  Minneapolis, 

&  M.  R.  Co. 
WooUey  c  Constant 

V.  North  London  R.  Co. 
Woolson  V.  Northern  Railroad  Co. 
Wooster  v.  Sugar  River  V.  R.  Co. 


Wootton's  Estate 

Worcester  &  Nashua  R.  Co.  i-.  Hinds 

Worcester  Turnpike  r.  Willard 

Works  r.  Junction  Railroad  Co. 

Wormwell  r.  Hailstone 

Worrall  v.  Judson 

Worsley  v.  South  Devon  R.  Co. 

Wright  I'.  Coster 

V.  Eawcett 

V.  Gossett 

V.  Indianapolis  &  Cincinnati  R. 
Co. 

V.  London  &  Northwestern  R.  Co. 

V.  Midland  Railway  Co. 

V.  New  York  Central  R.  Co. 

658,  571 

V.  Petrle 

r.  Scott 

J'.  Warren 

V.  Wilcox 
Wyandotte,  Kansas  Citv,&  N.  R.  Co. 
r.  Waldo  '  270, 

Wyatt  >■.  Groat  Western  R.  Co. 
Wycombe   Railway  Co.  v.  Donning- 
ton  Hospital 


661 
120 
215 
526 
290, 
302 
304 
174 
160 
;«9 
706 
132 
374 
322 
676 
619 

529 
655 
649 
657, 
,572 
108 
338 
147 
544 

273 

682 

230 


cu 


TABLE   OF   CASES. 


Wyman  v.  Eastern  Railroad  Co.  295 

V.  Lexiijgton  &  West  C.  K.  Co.      28(), 

400 
V.  Penobscot  &  Kennebec  11.  Co.   521 
Wynn  v.  Allard  592 

11.  Shropshire  Union  R.  &  C.  Co.   6G8 
Wynne  v.  Price  128, 132 

Wynstaiiley  v.  Lee  351 

Wyrley  Navigation  v.  Bradley  314 


Y. 


Yarborough  v.  Bank  of  England  543 

Yates  I'.  Milwaukee  3.% 

York  &  Cumberland  R.  Co.  v.  Pratt     174 

V.  White  174 

York  &  North  M.  R.  Co.  v.  Milner        703 

V.  Regina  680,  690 


Yorton  v.  Milwaukee,  Lake  Shore,  & 
W.  li.  Co.  98 

Young  t).  Harrison  300 

V.  New  York  Central  R.  Co.  638 

V.  Yarmouth  579 


Zabriskie  v.  Cleveland,  Columbus,  & 

C.  R.  Co.  58,  70,  603,  608 

V.  Jersey  City  &  Bergen  R.  Co.     330 

Zack  V.  Pennsylvania  R.  Co.  278 

Zeigler  v.  Soutli  &  North  A.  R.  Co.  484,  505 

Zimmer  v.  New  York  Central  &  H. 

R.  R.  Co.  585 

Zimmerman  v.  Hannibal  &  St.  Joseph 

R.  Co.  588 

V.  Union  Canal  Co.         230,  300,  321 


THE    LAW    OF    EAILAVAyS. 


THE    LAW   OF    RAILWAYS. 


♦CHAPTER    I. 


INTRODUCTION. 


1.  Origin  of  railways  in  England. 

2.  First  built  on  one's  own  land,  or  by 

special  license  from  tlie  owner. 

3.  Questions  in  regard  to  private   rail- 

ways. 


4.   Railways  in  America,  public  grants. 
6.   Use  of  steam  power  on  railways. 
6.   The  franchise  of  a  railway  not  neces- 
sarily corporate,  nor  unassignable. 


§  1.  1.  Although  some  of  the  Roman  roads,  like  the  Appian 
Way,  were  a  somewhat  near  approach  to  the  modern  railway, 
being  formed  into  a  continuous  plane  surface,  by  moans  of  blocks 
of  stone  fitted  closely  together,  yet  they  were,  in  the  principle  of 
construction  and  operation,  essentially  different  from  railways. 
The  idea  of  a  distinct  track,  for  the  wheels  of  carriages,  does  not 
seem  to  have  been  reduced  to  practice  until  late  in  the  seventeenth 
century.  In  1676,  some  account  is  given  of  the  transportation  of 
coals  near  Newcastle,  upon  the  river  Tyne,  upon  a  very  imperfect 
railway,  by  means  of  rude  carriages,  whose  wheels  ran  upon  some 
kind  of  rails  of  timber.^  About  one  hundred  years  afterwards,  an 
iron  railway  is  said  to  have  been  constructed  and  put  in  operation 
at  the  colliery  near  ShelTield.  From  this  time  they  were  put  into 
very  extensive  use,  for  conveying  coal,  stone,  and  other  like  sub- 
stances, short  distances,  in  order  to  reach  navigable  waters,  and 
sometimes  near  the  cities,  where  large  quantities  of  stone  were 
requisite  for  building  purposes. 

*  2.  These  railways,  built  chiefly  by  the  owners  of  coal-mines 
and  stone-quarries,  either  upon  their  own  land  or  by  sjiccial 
license,  called  "■  way-leave,"  upon  the  land  of  others,  had  become 

1  Roger  North's  Life  of  Lord  Keeper  North,  ii.  281 ;  Encyclopaedia 
Americana,  art.  Railway,  x.  478. 

VOL.  i.-l  [*1,  *2] 


2  INTRODUCTION.  [CHAP.  I. 

numerous  long  before  the  application  of  steam  power  to  railway 
transportation. 

3.  Some  few  questions  in  regard  to  the  use  of  these  railways,  or 
tramways,  at  common  law,  have  arisen  in  the  English  courts.^ 
But  as  no  such  railways  exist  in  this  country,  it  would  scarcely 
be  expected  that  we  should  here  more  than  allude  to  such  cases.^ 

*4.  All  railway?  and  other  similar  corporations  in  this  country 
exist,  or  are  presumed  to  have  originally  existed,  by  means 
of  an  express  grant  from  the  legislative  power  of  the  state  or 
sovereignty.* 

5.  The  first  use  of  locomotive  engines  upon  railways  for  pur- 
poses of  general  transportation  does  not  date  further  back  than 
October,  1829 ;  and  all  the  railways  in  this  country,  with  one  or 
two  exceptions,  have  been  built  since  that  date.^ 

2  Waif.  Railw.  2  et  seq.\  Hemingway  v.  Fernandes,  13  Sim.  228;  Keppell 
V.  Bailey,  2  Myl.  &  K.  .517. 

8  The  principal  points  of  those  cases  are:  That  such  licenses  are  not 
limited  to  the  use  of  the  means  of  locomotion  known  at  the  date  of  the 
license,  but  may  extend  to  such  as  afterwards  come  into  use.  Dand  v. 
Kingscote,  2  Railw.  Cas.  27;  s.  c.  6  M.  &  W.  174.  To  the  use  of  steam- 
power,  for  instance.  Bishop  v.  North,  3  Railw.  Cas.  459;  s.  c  11  M.  &  W. 
418.  That  this  will  not  justify  a  grantee  of  a  right  to  erect  a  railway  for  a 
special  purpose  to  erect  one  for  general  purposes.  Dand  v.  Kingscote,  supra; 
Farrow  v.  Vansittart,  1  Railw.  Cas.  602;  Durham  &  Sunderland  Railway  Co. 
V.  Walker,  3  Railw.  Cas.  36;  s.  c  2  Q.  B.  940.  That  if  the  railway  is  such 
as  the  company  may  lawfully  make  for  purposes  for  which  when  made  it 
may  be  lawfully  used,  mere  intention  to  use  for  an  unlawful  purpose  gives 
the  reversioner  no  ground  of  complaint.  Durham  &  Sunderland  Railway  Co. 
V.  Walker,  supra.  That  such  way-leaves  may  exist  by  express  contract,  by 
presumption  or  prescription,  from  necessity,  as  accessory  to  other  grants,  and 
by  acquiescence.  Barnard  v.  Wallis,  2  Railw.  Cas.  162;  s.  c.  1  Craig  &  P. 
85;  Monmouthshire  Canal  Co.  v.  Harford,  1  C.  M.  &  R.  614.  And  that  the 
proprietors  are  under  certain  obligations  to  keep  road  in  repair,  so  as  not  to 
injure  occupiers  of  adjoining  lands,  to  pay  tenant's  damages,  and  sometimes 
to  pay  rent.     Wilson  v.  Anderson,  1  Car.  &  K.  514;  Waif.  Railw.  supra. 

*  2  Kent  Com.  276,  277;  Stockbridge  v.  West  Stockbridge,  12  Mass.  400; 
Hagerstown  Turnpike  Co.  v.  Creeger,  5  Har.  &  J.  122;  Greene  v.  Dennis, 
6  Conn.  292,  302,  per  Hosmer,  C.  J. ;  Franklin  Bridge  Co.  v.  Wood,  14  Ga. 
80.  But  municipal  authorities  have  assumed  to  grant  a  right  to  a  private 
railway  within  the  limits  of  the  municipality.  Wilson  v.  Cunningham,  3 
Cal.  241.     And  see  mfra,  §  250. 

6  The  celebrated  trial  of  locomotive  engines  on  the  Liverpool  and  Man- 
chester Railway,  to  determine  the  i-elative  value  of  stationary  and  locomotive 
power,  resulting   in  favor  of   the   latter,  was  had   in  October,   1829.     The 

[*3] 


§  1.]  INTRODUCTION.  8 

*  G.  There  is  nothing  in  the  prerogative  riglit  of  maintaining 
and  operating  a  railway  and  taking  tolls  thereon  which  is  neces- 
sarily of  a  corporate  character,  or  which  might  not,  with  perfect 
pro])rlcty,  belong  to,  or  be  exercised  by,  natural  persons,  or  which 
in  its  nature  may  not  be  regarded  as  assignable.^ 

Quincy  Railway,  for  the  transportation  of  granite  by  horse  power,  was  con- 
structed about  two  years  before;  but  the  Boston  and  Lowell  Railway,  one  of 
the  first  railways  in  this  country  for  purposes  of  general  traffic,  was  not  incor- 
porated until  Juno,  1830. 

•  Middlebury  Bank  v.  Edgerton,  30  Vt.  182,  per  Bennett,  J. 


PAUT  I. 

THE   LAW   OF   PRELIMINARY   ASSOCIATIONS. 


TAPtT  I. 


THE   LAW   OF  PRELIMINARY  ASSOCIATIONS. 


♦CHAPTER    XL 


PUBLIC   RAILWAYS   AS   CORPORATIONS.  —  PRELIMINARY   ASSOCIATIONS. 


SECTION    I. 


Mode  of  institiiting  Railivay  Projects. 


1    Subscribers'  associations  in  England. 

2.  Subscribers    bound    by     subsequent 

charter. 

3.  Issue  and  registry  of  scrip  certificates. 

4.  Original  subscriber  liable  to  unregis- 

tered purchaser. 

5.  Holders  of  scrip  entitled  to  registry. 

6.  Preliminary  associations  not  common 

in  this  country. 


7.  Petitioners  for  incorporation  file  plans 

and  surveys. 

8.  English  statute  of  1862. 

9.  Preliminary  associations  may  be  re- 

gistered. 
10.   Not  now  held  responsible  as  part- 
ners in  England. 


§  2.  1.  The  mode  of  institutino^  railway  enterprises,  in  Enirland, 
is  more  formal  t^nd  essentially  dillerent  from  that  adopted  in  most 
of  the  American  states.  There  the  promoters  usually  associate 
under  two  provisional  deeds,  the  one  called  a  ''  Subscribers'  Agree- 
ment," and  the  other  a  "  Subscription,  or  Parliamentary  Contract," 
which  are  expected  only  to  serve  as  the  basis  of  a  temporary 
organization  till  the  charter  is  obtained.  This  is  specifically  and 
often  in  detail  to  some  extent  provided  for,  in  the  subscriber.s' 
agreement.  A  board  of  provisional  directors  is  provided  to  carry 
forward  the  enterprise,  whose  powers  arc  defined  in  the  sub- 
scribers' agreement  or  deed  of  association,  and  who.<e  acts  will  not 
bind  the  members  unless  strictly  within  the  powers  conferred  by 
the  deed. 

2.  Under  this  form  of  association,  the  subscribers  are  bound  by 
the  act  obtained,  if  within  the  powers  conferred  by  the  deed,  even 
where  it  involves  the  purchase  of  canal,  and  other  property  by  the 

[*5] 


8  PRELIMINARY   ASSOCIATIONS.  [PART   I. 

company.^  And  courts  of  equity  often  interfere  to  restrain  the 
provisional  directors  from  exceeding  their  powers  under  the  deed,^ 
*  or  misapplying  the  funds,  or  delaying  payment  of  the  debts  of 
the  association.* 

3.  The  provisional  directors  usually  issue  scrip  certificates, 
wliich  pass  from  hand  to  hand  by  delivery  merely,  and,  after  the 
charter  is  obtained,  the  scripholders  are  registered  as  shareholders 
in  the  company,  and  thereby  become  entitled  to  all  the  rights,  and 
subject  to  all  the  liabilities  of  the  shareholders.* 

4.  And  if  the  original  subscriber  sell  the  scrip  to  one  who  omits 
to  have  his  name  registered  as  a  shareholder,  by  reason  of  wliich 
the  original  subscriber  cause  his  name  to  be  registered  and  sell 
the  shares  again,  he  will  be  held  to  account  for  the  avails  of  the 
second  sale,  as  a  trustee  for  the  first  purchaser.^ 

5.  But  the  company  are  not  obliged  to  accept  of  the  holders  of 
scrip  as  shareholders,  in  discharge  of  the  original  subscribers,  it 
has  been  said,  but  may  insist  upon  registering  the  original  sub- 
scribers to  the  deed  of  association,  to  whose  aid  it  may  be  pre- 
sumed the  promoters  looked  in  undertaking  the  enterprise,  which 
by  their  act  of  incorporation  they  are  morally,  and  in  some  cases 
legally,  bound  to  carry  forward.^  But  the  English  decisions, 
upon  the  whole,  hardly  seem  to  justify  this  proposition.  The 
subscriber   cannot   abandon  the  obligation  at  will.'     But  if   the 

1  Midland  Great  Western  Railway  Co.  v.  Gordon,  16  M.  &  W.  804. 

2  Gilbert  v.  Cooper,  4  Railw.  Gas.  396;  s.  c.  15  Sim.  343.  All  persons 
concerned  must  be  made  parties  to  the  bill,  —  even  shareholders  of  whom  it  is 
alleged  a  rival  company  proposes  to  purchase  shares,  to  destroy  the  indepen- 
dence of  one  of  the  companies  connected  with  the  common  enterprise.  Great- 
hed  V.  Southwestern  &  Dorchester  Railway  Co.,  4  Railw.  Cas.  213;  s.  c.  10 
Jur.  343. 

8  Lewis  V.  Billing,  4  Railw.  Cas.  414;  s.  c.  10  Jur.  8.51.  Bagshaw  r. 
Eastern  Union  Railway  Co.,  6  Railw.  Cas.  152;  s.  c.  7  Hare,  114;  Bryson 
V.  Warwick  &  Birmingham  Canal  Co.,  23  Eng.  L.  &  Eq.  91;  s.  c  4  De  G. 
M.  &  G.  711. 

*  Birmingham,  Bristol  &  Thames  Junction  Railway  Co.  v.  Locke,  1  Q.  B. 
256;  London  Grand  Junction  Railway  Co.  v.  Graham,  id.  271;  s.  c.  2  Q.  B. 
281;  Cheltenham  &  Great  Western  Union  Railway  Co.  v.  Daniel,  2  Railw. 
Cas.  728;  Sheffield,  Ashton-under-Lyne,  &  Manchester  Railway  Co.  v.  Wood- 
cock, 2  Railw.  Cas.  522;  s.  c.  7  M.  &  W.  574.     And  see  infra,  §  47. 

6  Beckitt  V.  Bilbrough,  19  Law  J.  522;  s.  c.  8  Hare,  188. 

•  Ilodges  Raihv.  07. 

'  Kidwelly  Caual  Co.  v.  Raby,  2  Trice,  93;  Great  Xorth  of  England  Rail- 
[*6] 


§  2.]  MODE   OF   INSTITUTING    RAILWAY    PROJECTS.  9 

scrip  is  transferable,  by  delivery,  it  would  be  strange  if  the  holder 
was  not  entitled  *  to  be  registered,  as  a  shareholder,  the  same  as 
the  assignee  of  a  fully  registered  share  in  the  stock.  And  for  the 
company,  after  having  issued  scrip  certificates,  in  a  form  calcu- 
lated to  invite  purchases,  and  when  they  were  aware  of  tlie  use 
constantly  made  of  such  scrip,  to  refuse  to  register  the  names  of 
the  holders,  as  shareholders  and  members  of  the  company,  wouhl 
amount  to  little  less  than  express  fraud.  Hence  we  conclude  they 
have  no  right  to  decline  accepting  such  scripholdcr,  as  a  share- 
holder.^ But  where  false  scrip  had  been  issued,  beyond  the 
amount  allowed  in  the  charter,  and  the  full  number  of  shares 
allowed  by  the  charter  already  registered,  it  was  held  the  com- 
pany could  not  upon  that  ground  refuse  to  register  the  shares  of 
such  as  had  purchased  the  genuine  scrip.^  But  we  shall  have 
occasion  to  say  more  upon  this  subject  elsewhcre.^*^ 

G.  By  the  laws  of  some  of  the  states  a  given  number  of  persons 
associating,  in  a  i)rescribcd  form,  for  particular  purposes,  as  relig- 
ious, manufacturing,  and  banking  purposes,  and  often  for  any 
lawful  purpose,  are  declared  to  be  a  corporation.  In  such  cases 
no  application  to  the  legislature  is  required.  But,  generally,  rail- 
ways in  this  country  have  obtained  special  acts  of  incorporation. 
There  is,  in  most  of  the  states,  no  provision  for  any  preliminary 
association,  and  these  enterprises  are,  for  the  most  part,  carried 
forward  by  individuals,  or  partnerships,  and  questions  arising,  in 
regard  to  the  binding  force  of  the  acts  of  the  promoters,  either 
upon  or  towards  the  corporation,  must  depend  upon  the  general 
principles  of  the  law  of  contract. ^^ 

7.  By  the  general  law  of  some  of  the  states  the  petitioners  arc 
required  to  furnish  surveys  of  the  proposed  route,  properly  delin- 
eated upon  charts  by  competent  engineers,  with  estimates,  and 
other  information  requisite  for  the  full  understanding  of  the  sub- 
ject. And  these  profiles  and  plans  are  required,  where  the  peti- 
tion is  granted,  to  be  deposited  in  some  public  onicc,for  inspection 
and  preservation.^ 

way  Co.  V.  Biddulph,  2  Railw.  Cas.  401;  s.  c.  7  M.  &  W.  213,  where  the 
question  is  raised,  but  not  determined. 

8  Midland  Great  Western  Railway  Co.  v.  Gordon,  5  Railw.  Cas.  70;  s.  c. 
16  M.  &  W.  801. 

9  Daly  V.  Thompson,  10  M.  &  W.  309. 

10  Infra,  §§  39,  47.  "  Angell  &  Ames  Corp.  §§  80-94. 

12  Mass.    Laws,    1833,  c.  170,  1848,  c.  140  ;   Rhode   Island   Laws,    1836  ; 

L*7] 


10 


PRELIMINARY   ASSOCIATIONS. 


[part  I. 


8.  Since  the  publication  of  the  second  edition  of  this  work,  the 
mode  of  procedure  in  obtaining  parliamentary  powers  for  railways, 
*  in  England,  has  been  considerably  changed.  The  former  laws 
have  been  repealed,  and  the  whole  consolidated  into  one  statute,^^ 
called  "  The  Companies'  Act,  18G2,"  which  applies  to  other  com- 
panies as  well  as  railways. 

9.  The  usual  course  now  is  for  the  preliminary  association  to 
register  itself  as  a  preliminary  company  under  the  Act  of  1862, 
for  the  purpose  of  obtaining  a  special  Act  of  Parliament.  This  is 
effected  by  the  promoters  signing  a  memorandum  of  association, 
in  which  the  powers  of  the  company  are  specially  limited  to 
certain  acts  or  purposes. 

10.  If  the  association  be  not  registered  under  the  statute  so  as 
to  constitute  it  a  corporation  with  limited  powers,  there  may  be 
danger  that  the  individual  members,  who  are  active  in  promoting 
the  enterprise,  may  incur  the  responsibility  of  general  partners.^* 
But  in  England,  it  seems  now  settled  that  the  promoters  of  rail- 
ways are  not,  ordinarily,  to  be  held  responsible,  as  partners,  for 
the  acts  of  each  other.^^ 


♦SECTION  II. 


Contracts  of  the  Promoters  not  binding  at  law  on  the  Company. 


1.  In  this  country,  promoters  bind  only 

themselves  and  associates. 

2.  Contracts  of  promoters  not  enforce- 

able by  company. 


3.  But  b}'  consenting  to  a  decree  in 
equity  setting  up  the  contract,  the 
company  will  be  held  to  have 
adopted  it. 


§  3.  1.  The  promoters  of  railways,  in  this  country,  where  the 
law  makes  no  provision  for  the  preliminary  association  becoming 
a  corporation,  can  only  bind  themselves  and  their  associates,  at 
most,  by  their  contracts.  The  promoters  are  in  no  sense  identi- 
cal* with  the  corporation,  nor  do  they  represent  them,  in  any 

Conn.  Laws,  1849,  c.  37,  1853;  Me.  Rev.  Sts.  c.  81,  §  1 ;  2  Railroad  Laws 
&  Ch.  61G,  657,  838;  1  Railroad  Laws  &  Ch.  305.  Similar  provisions  are 
made  by  the  laws  of  many  of  tlie  States. 

18  St.  25  &  26  Vict.  c.  89.  "  Hodges  Railw.  (ed.  1865),  2. 

15  Hamilton  v.  Smith,  5  Jur.  n.  s.  32;  Norris  v.  Cooper,  3  H.  L.  Cas.  161; 
infra,  §  4,  note  12.  St.  27  &  28  Vict.  c.  121  facilitates,  in  certain  cases,  the 
obtaining  of  powers  for  the  construction  of  railways. 

[*8-*10] 


§  3.]       CONTRACTS   OF   PROMOTERS   NOT   BINDING   ON   COMPANY.         11 

relation  of  agency,  and  their  contracts  could  of  course  only  hind 
the  company,  so  far  as  they  should  be  subsequently  adopted  by  it, 
as  their  successors ;  much  in  the  same  mode  and  to  the  same 
extent,  and  under  the  same  restrictions  and  limitations,  as  the 
contracts  of  one  partnership  bind  a  succeeding  partnership  in  the 
same  house.^ 

2.  But  a  contract  by  a  joint-stock  association,  that  each  mem- 
ber shall  pay  all  assessments  made  against  him,  cannot  be  en- 
forced by  a  corporation  subsequently  created,  and  to  which,  in 
pursuance  of  the  original  articles  of  association,  the  funds  and  all 
the  effects  of  the  former  company  have  been  transferred.^     Nor  is 

1  Moneypenny  v.  Hartland,  1  C.  &  P.  3.52;  Kerridge  v.  Ilesse,  9  C.  &  P. 
200;  Doubleday  v.  Muskett,  7  Bing.  110.  And  see  further,  infra,  §  4,  note  12. 
From  these  cases,  from  Bell  v.  Francis,  9  C.  &  P.  66,  from  the  cases  cited  in 
the  note  above  referred  to,  and  from  some  others,  it  would  seem  that  the 
directors  and  managing  committee  are  always  liable  for  services  rendered  the 
association  on  their  employment  and  credit,  and  that  such  other  members  of 
the  association  are  liable  also  as  from  their  active  agency  in  the  business  (as, 
e.  g.,  by  attending  meetings)  or  from  the  terms  of  association  may  reasonably 
be  looked  to  for  compensation.  Lake  v.  Duke  of  Argyll,  6  Q.  B.  477;  and 
see  Swan  v.  North  British  Australasian  Co.,  7  H.  &  N.  603;  Eales  v.  Cumber- 
land Black  Lead  Mine  Co.,  6  H.  &  N.  481;  s.  c  7  Jur.  x.  s.  1G9.  Thus,  in 
Scott  V.  Lord  Ebury,  Law  Rep.  2  C.  P.  255,  it  was  held  that  the  promoters 
were  liable  for  the  expense  of  obtaining  the  act  of  parliament,  notwithstand- 
ing the  incorporation  and  the  assumption  of  those  acts  by  the  company.  But 
see  Nevins  v.  Henderson,  5  Railw.  Cas.  684,  which  held  that  a  surveyor,  to 
recover  of  the  provisional  committee,  must  show  employment  by  them  or  their 
agent,  or  a  ratification.  And  see  Williams  v.  Pigott,  5  Railw.  Cas.  544;  8.  C. 
2  Exch.  201 ;  Spottiswoode's  Case,  39  Eng.  L.  &  Eq.  520.  As  to  admissions 
made  by  committee-men  and  others  who  have  taken  part  in  the  enterprise, 
the  courts  in  England  make  some  allowance  for  misapprehension  on  the  part 
of  those  who  do  not  understand  the  liability  of  such  persons.  Newton  v. 
Belcher,  6  Railw.  Cas.  38;  s.  c.  12  Q.  B.  921.  And  where  others  have  not 
acted  on  such  admissions,  it  may  be  shown  that  they  were  made  under  mis- 
take either  of  law  or  of  fact;  and  where  so  made  they  add  nothing  to  the  lia- 
bility. This  rule  is  laid  down  in  Ileane  r.  Rogers,  9  B.  &  C.  577,  and 
expressly  recognized  in  Newton  v.  Liddiard,  6  Railw.  Cas.  42.  And  even 
where  they  amount  to  an  estoppel,  it  extends  only  to  parties  and  privies  to  the 
particular  transaction  in  which  the  admissions  were  made.  Heane  v.  Rogers, 
supra.  This  is  in  accordance  with  the  established  principle  of  the  law  of  evi- 
dence.    Strong  r.  Ellsworth,  20  Yt.  306. 

2  Wallingford  Manufacturing  Co.  v.  Fox.  12  Vt.  304;  Goddard  r.  Pratt, 
16  Pick.  412,  where  it  is  held  that  the  original  copartners  are  still  liable,  on 
contracts  made  with  third  parties  ignorant  of    the  dissolution  bv  the  effect 

[no] 


12 


PRELIMINARY   ASSOCIATIONS. 


[part  I. 


the  act  of  *  all  the  corporators  even,  the  act  of  the  corporation, 
unless  done  in  the  mode  prescribed  by  the  charter  and  general 
laws  of  the  state.^  Nor  can  an  incorporated  company  sustain  an 
action  at  law,  upon  a  bond  executed  to  a  preliminary  association, 
by  the  name  of  the  individuals  and  their  successors,  as  the  gover- 
nors of  the  Society  of  Musicians,  for  the  faithful  accounting  of 
A.  B.,  their  collector,  to  them  and  their  successors,  governors,  &c., 
the  company  being  subsequently  incorporated.* 

3.  But  the  company,  by  consenting  to  a  decree  against  them, 
upon  a  bill  to  enforce  a  contract  with  the  promoters,  by  which 
they  stipulated  to  withdraw  opposition  in  parliament,  upon  condi- 
tion that  the  company,  when  it  came  into  operation,  should  take 
the  land  of  the  opposers  of  the  bill  at  a  specified  price,  and  pay 
all  the  costs  and  expenses  of  the  opposition  until  the  time  of  the 
compromise,  were  held  to  have  adopted  the  agreement,  whether  it 
would  have  been  otherwise  binding  upon  them  or  not.^ 


SECTION  III. 


Subscribers  to  the  Preliminary  Association  inter  sese. 


Liability  for  acts  of  directors  limited 
by  terms  of  subscription. 

Association  not  binding  until  prelimi- 
naries are  complied  with. 

Contracts,  how  far  controlled  by  oral 
representations  of  directors. 

Subscribers  not  excused  from  paying 
calls  by  contract  of  directors. 


Not  liable  for  expenses,  except  by 
terms  of  agreement. 
,   Deeds  of  association  generally  make 
provision  for  expenses. 
One  who  obtains  shares,  without  exe- 
cuting the  deed,  not  bound  to  con- 
tribute. 
n.  12.  No  relation  of  general  partner- 
ship subsists  between  subscribers. 


§  4.  1.  The  project  for  a  railway  being  set  on  foot  by  a  pro- 
visional committee  of  directors  or  managers,  the  subscribers  may 
insist  upon  the  terms  of  subscription.  The  subscribers  are  not 
bound  by  any  special  undertaking  of  the  directors,  or  any  portion 

of  the  incorporation,  the  company  having  carried  on  business  in  the  name  of 
the  partnership. 

8  Wheelock  v.  Moulton,  15  Yt.  519. 

*  Dance  v.  Girdler,  New  Rep.  34.     See  Gittings  v.  Mayhew,  6  Md.  113. 

6  Williams  v.  St.  George's  Harbor  Co.,  2  De  G.  &  J.  547;  s.  c.  4  Jur. 
N.  s.  1066. 


§  4.]  SUBSCRIBERS   TO   PRELIMINARY   ASSOCIATION.  18 

of  (hem,  beyond  or  aside  from  the  powers  conferred  by  the  terms 
of  the  deed  or  contract  of  association.^ 

2.  And  the  association  is  not  bindintr,  until  the  provisions  hj 
*  which  it  is,  by  its  own  terms,  to  become  complete,  are  complied 
with.  If  before  that  the  scheme  be  abandoned,  the  provisional 
subscribers,  or  allottees,  may  recover  back  their  deposits  of  the 
provisional  committee,  in  an  action  for  money  had  and  received.^ 
So,  too,  if  one  is  induced  to  accept  of  shares  in  the  provisional 
company,  by  fraudulent  representations,  he  may  recover  back  the 
whole  of  his  deposits.^ 

3.  But  if  one  actually  become  a  subscriber,  he  is  bound  by  the 
terms  of  subscription,  without  reference  to  prior  oral  representa- 
tions, and  must  bear  a  portion  of  the  expense  incurred,  if  the  sub- 
scription so  provide.*  But  if  the  directors,  in  such  provisional 
company,  in  order  to  induce  subscriptions,  promise  the  subscriber, 
that  in  the  event  of  no  charter  beini^  obtained  he  shall  be  repaid 
his  entire  deposit,  this  contract  is  binding  upon  them,  and  may  be 
enforced  by  action,  notwithstanding  the  subscriber's  agreement 
authorized  the  directors  to  expend  the  money  in  the  mode  they 
did.° 

4.  But  the  contract  of  the  directors  will  not  excuse  the  sub- 
scriber from  paying  calls,  if  the  terras  of  the  subscriber's  agree- 
ment require  it.^     The  contract  of  the  directors  in  such  case,  and 

1  Ex  parte  Londesborough,  27  Eng.  L.  &  Eq.  292 ;  s.  c.  4  De  G.  M.  &  G. 
411;  Ex  parte  Movvatt,  1  Drewry,  247. 

2  Walstab  v.  Spottiswoode,  4  Raihv.  Cas.  321;  s.  c.  15  M.  &  W.  501. 

'  Jarrett  v.  Kennedy,  6  C.  B.  31!).  To  bind  the  subscriber  to  take  tho 
shares,  the  company  need  not  give  notice  of  allotment.  It  is  the  subscriber's 
duty  to  take  notice  thereof,  and  to  pay  all  dues  fixed  by  Jaw  or  bj*  the  terms 
of  the  contract.     Ex  parte  Bloxam,  10  Jur.  n.  s.  814;  s.  c.  33  Heav.  529. 

*  Watts  I'.  Salter,  10  C.  B.  477.  And  it  will  make  no  difference  that  he 
has  not  received  the  shares  allotted  to  him  nor  paid  the  deposits.  Ex  parte 
Bowen,  21  Eng.  L.  &  Eq.  422.  Where  a  subscriber  has  paiil  towards  ex- 
penses all  that  the  terms  of  association  require,  he  cannot  be  charged  furth<M- 
because  he  paid  without  taxation.  Croskey  v.  Wales  Bank,  4  (lilT.  314.  But 
he  cannot  charge  his  subscription  against  the  company  a.s  money  advanced 
for  its  benefit.     Spackman  i'.  Lattimore,  3  Giff.  IG ;  s.  c.  7  Jur.  N.  s.  179. 

6  Mowatt  V.  Londesborough,  25  Eng.  L.  &  Eq.  25,  and  3  Ellis  &  B.  307; 
8.  0.  in  error,  28  Eng.  L.  &  Eq.  119,  and  4  Ellis  &  B.  1 ;  Ward  r.  Londes- 
borough, 22  Eng.  L.  &  Eq.  402. 

^  Ex  parte  ^lowatt,  supra.  The  subscriber  will  not  be  liable  on  calls,  how- 
ever, unless  he  has  subscribed  the  deed  of  association,  nor  unless  the  shares 

[*12] 


14  PRELIMINARY   ASSOCIATIONS.  [PART   I. 

the  deed  of  association,  are  wholly  independent  of  each  other,  and 
neither  will  control  the  other  J 

5.  But  it  has  been  held,  that  persons,  by  taking  shares  in  a 
projected  railway,  do  not  bind  themselves  to  pay  any  expense 
incurred,  unless  it  is  so  provided  in  the  preliminary  contracts  of 
association,  or  the  expense  is  incurred  with  their  sanction  and 
upon  their  credit.^  And  even  where  such  shareholder  consents  to 
act  on  the  provisional  committee,  it  will  not  render  him  liable,  as 
a  contributory,  to  the  expense  of  the  company.^ 

*  6.  But  in  general,  the  form  of  the  deeds  of  association  is  such, 
that  if  one  takes  shares  without  reservation  he  is  to  be  regarded 
as  a  contributory  to  the  expense,  and  especially  where  he  acts  as 
one  of  the  provisional  committee,  and  also  accepts  shares  allotted 
to  him.i*^ 

7.  But  one  who  had  obtained  shares  in  a  projected  railway  com- 
pany, but  without  executing  the  deed  of  settlement,  or  any  deed 
referring  to  it,  was  held  not  liable  to  contribute  to  the  expense 
incurred  in  attempting  to  put  the  company  in  operation ,1^  and 
especially  if  the  acceptance  of  the  shares  was  conditional  upon 
the  full  amount  of  the  capital  of  the  company  being  subscribed, 
which  was  never  done.^^ 

have  been  specifically  numbered  and  appropriated  by  number.  Irish  Peat 
Co.  V.  Phillips,  7  Jur.  N.  s.  413;  s.  c.  affirmed,  7  Jur.  n.  s.  1189,  1  B.  &  S. 
598.  But  it  is  not  indispensable  under  the  English  statute  that  the  register 
of  shareholders  be  made  and  sealed  within  the  statute  period.  So  far  as  the 
liability  of  the  subscriber  is  concerned,  the  statute  is  to  be  deemed  directory. 
Wolverhampton  New  Waterworks  Co.  v.  Hawksford,  11  C.  B.  n.  s.  456;  8  Jur. 
K.  s.  844.  The  company  when  incorporated  may  sue  in  its  own  name  on  calls 
made  by  the  preliminary  association.     Hull  Co.  v.  Wellesley,  6  H.  &  N.  38. 

■^  Dover  &  Deal  Railway,  ex  parie  Mowatt,  19  Eng.  L.  &  Eq.  127;  s.  c. 
1  Drewry,  247. 

8  Ex'parte  Maudslay,  1  Eng.  L.  &  Eq.  61;  s.  c.  14  Jur.  1012. 

9  Ex  parte  Carmichael,  1  Eng.  L.  &  Eq.  66;  s.  c.  14  Jur.  1014;  Ex  parte 
Clarke,  id.  69. 

10  Ex  parte  Burton,  1-3  Eng.  L.  &  Eq.  4-3.5;  s.  c.  16  Jnr.  967;  Ex  parte 
Markwell,  13  Eng.  L.  &  Eq.  456;  8.  c  5  De  G.  &  S.  528;  UpfiU's  Case, 
1  Eng.  L.  &  Eq.  13;  s.  c.  14  Jur.  843;  Watts  v.  Salter,  12  Eng.  L.  &  Eq.  482. 
See  also  In  re  St.  James's  Club,  13  Eng.  L.  &  Eq.  589 ;  s.  c.  10  C.  B.  477,  as  to 
the  effect  of  proof  of  the  subscriber  being  present  when  a  resolution  is  passed. 

"  To  fix  the  liability  of  the  subscriber,  where  the  liability  depends  on  the 
subscription,  the  subscription,  it  seems,  should  be  in  his  own  handwriting, 
and  not  by  procuration.     Ex  parte  Richardson,  4  Law  T.  Rep.  N.  s.  589. 

"  It  was  formerly  held  that  all  persons  engaged  in  obtaining  a  bill  in  par- 


§  5.]  CONTRACTS   OF   PROMOTERS   ADOPTED.  16 

♦SECTION   IV. 
Contracts  of  the  Promoters  adopted  hy  the  Company. 


1.  Liability  in  general  transferable  witb 
assent  of  creditors.  Uut  not  if  in- 
equitable. 


n.  .3.  Powers  of  provisional  company  to 
contract  liniiied  by  statute. 


§  5.  1.  The  company  when  fully  incorporated  may  assume  the 
liabilities  of  the  preliminary  association,  incurred  in  obtaining 
the  special  act,  or,  as  is  sometimes  the  case,  where  the  association 
*  make  an  assignment  of  their  property .^  But  even  an  express 
provision  in  the  charter,  that  the  company  shall  be  solely  liable 
for  the  debts  of  the  association,  will  not  exonerate  the  association 
unless  by  the  consent  of  the  creditors.^  But  when  the  company 
assumes  the  debts  of  the  association,  with  the  assent  of  the  cred- 

liament  for  a  railway  were  partners  in  the  undertaking.  Holmes  r.  Iliggins, 
1  B.  &  C.  74.  See  also  Goddard  v.  Hodges,  1  C.  &  M.  33.  Uut  it  is  now  set- 
tled in  England  that  there  is  no  relation  of  general  partnership,  and  no  power 
to  bind  one  another  for  expenses;  and  that  each  binds  himself  alone,  unless 
he  acts  by  virtue  of  some  authority  conferred  by  deeds  of  association.  Bright 
V.  Ilutton,  3  II.  L.  Cas.  341,  3G8,  per  Parke,  B.  If,  however,  the  promoters 
suffer  themselves  to  be  held  out  as  partners,  they  are  liable  for  services  ren- 
dered on  their  credit.  Wood  v.  Duke  of  Argyll,  G  !Man.  &  G.  928;  Steigen- 
berger  v.  Carr,  3  Man.  &  G.  191.  As  they  are,  on  any  theory,  where  they 
have  so  conducted  themselves  as  reasonably  to  be  looked  to  for  payment. 
See  supra,  §  3,  note  1.  With  respect  to  contribution  between  promoters,  it  is 
held  that  one  cannot  in  equity  compel  another  to  contribute  to  expenses  in- 
curred by  him,  unless  he  is  willing  to  have  all  expenses  brought  into  one 
account  and  adjusted  together.  Denton  v.  Macniel,  Law  Rep.  2  Eq.  352. 
But  an  agreement,  aside  from  the  deed  of  association,  that  one  of  the  pro- 
moters shall  indemnify  another,  is  valid.  Connop  y.  Levy,  5  llailw.  Cas.  124; 
8.  c.  11  Q.  B.  769.  A  general  indemnity,  however,  against  costs,  will  extend 
only  to  costs  in  suits  lawfully  brought.  Lewis  r.  Smith,  2  Shelf.  (Bennett'.s 
ed.)  1030.  The  property  in  shares  vests  on  execution  of  the  deed  and  regis- 
tration of  the  company.  The  certificates  are  but  the  indicia  of  projxjrty. 
Hunt  I'.  Gunn,  3  Fost.  &  F.  223.  And  a  registered  shareholder  in  a  company 
afterwards  incorporated  with  a  new  company  is  to  be  regarded  as  a  share- 
holder in  the  latter,  if  the  act  of  incorporation  so  provide,  though  he  has  not 
exchanged  his  certificates.  Spackman  v.  Lattimore,  3  Giff.  16;  s.  c.  7  Jur. 
N.  s.  179. 

1  Ilaslett  V.  Wotherspoon,  1  Strob.  Eq.  209 ;  Salem  Mill  Dam  Co.  i'.  Ropes, 
6  Pick.  23. 

2  Witmer  v.  Schlatter,  2  Rawle,  359. 

[♦14,  *lo] 


16  PRELIMINARY   ASSOCIATIONS.  [PART  I. 

itors,  the  association  will  be  relieved.^  But  where  the  plaintiff 
contracted  *  with  the  promoters  of  a  railway  bill  to  bear  the  costs 
of  obtaining  it,  and  the  bill  passed  with  the  usual  clause  that  the 
costs  of  obtaining  it  should  be  borne  by  the  company,  it  was 
nevertheless  held  that  the  contract  would  preclude  the  recovery 
of  the  costs  of  the  corporation.* 


SECTION  V. 

How  contracts  of  the  Promoters  may  he  adopted  hy  the  Company. 

Company  cannot  assume  the  benefit  without  the  burden. 

§  6.  Wherever  a  third  party  enters  into  a  contract  with  the 
promoters  of  a  railway,  which  is  intended  to  enure  to  the  benefit 
of  the  company,  and  they  take  the  benefit  of  the  contract,  they 
will  be  bound  to  perform  it,  upon  the  familiar  principle  that  one 
who  adopts  the  benefit  of  an  act,  which  another  volunteers  to  per- 
form in  his  name  and  on  his  behalf,  is  bound  to  take  the  burden 
with  the  benefit.^ 

8  Whitwell  V.  Warner,  20  Vt.  425.  But  under  the  English  statutes  com- 
panies provisionally  registered  are  not  allowed  to  make  any  contract  not  indis- 
pensable to  carrying  forward  the  project  to  full  registration.  St.  7  &  8  Vict, 
c.  110.  A  contract,  e.  g.,  for  plans,  sections,  and  books  of  reference  to  the 
value  of  £3,000.  Bull  v.  Chapman,  20  Eng.  L.  &  Eq.  488;  s.  c  8  Exch. 
444.  Or  a  contract  by  which  the  promoters  agree  to  give  a  tenant  for  life 
£20,000  for  his  support  to  the  scheme,  the  contract  being  adopted  by  the  pro- 
visional committee  of  a  substituted  company  and  carried  into  an  indenture 
by  the  incorporated  company,  and  recognized  by  payment  of  interest  on  the 
sum  agreed  on.  Such  a  contract  held  ultra  vires,  and  not  in  respect  of  "  costs 
incurred  in  obtaining  the  special  act,  and  incident  thereto,"  within  the  mean- 
ing of  the  Consolidation  Act,  §  65.  Lord  Shrewsbury  v.  North  Staffordshire 
Railway  Co.,  12  Jur.  n.  s.  03,  per  Kindersley,  V.  C.  And  a  contract  be- 
tween the  projector  and  the  directors  of  a  company  provisionally  registered, 
not  in  terms  made  conditional  on  the  completion  of  the  company,  is  not  bind- 
ing on  the  subsequently  completely  registered  company,  though  ratified  and 
confirmed  by  the  deed  of  settlement.  Gunn  v.  London  &  Lancashire  Insur- 
ance Co.,  12  C.  B.  N.  s.  694. 

*  Savin  v.  Rylake  Railway  Co.,  Law  Rep.  1  Exch.  9;  s.  c.  Law  Rep.  1  Eq. 
503. 

i  Gooday  v.  Colchester  &  Stour  Valley  Railway  Co.,  15  Eng.  L.  &  Eq.  596; 
s.  c.  17  Beav.  132;  Preston  v.  Liverpool  &  Manchester  &  Newcastle-upon-Tyne 
[*16] 


§  7.]  CONTRACTS   BETWEEN   PROMOTERS    AND    OPPOSERS.  17 


•SECTIOI^    VI. 

Contracts  between  the  Promoters  and  Opposers  of  a  Bill  for  the 
Charter  of  a  Hallway. 

1.   English  cases   numerous  and  iinpor-   I  2-6.    Lord    Elilon's   opinion,    in   case   of 
tant.  I  Vauxliall  Bridge  Cu. 

§  7.  1.  The  cases  in  tlie  English  books  upon  the  sultji^ot  of 
contracts  between  the  promoters  of  railway  projects  in  parliament 
and  those  who  have  counter  interests,  and  who  are  ready  to  per- 
sist in  opposition  to  sucli  projects  unless  they  can  secure  some 
compromise  with  the  promoters,  are  consideral^ly  numerous,  and 
involve  a  question  of  no  inconsiderable  importance.  We  shall 
therefore  examine  them  somewhat  in  detail. 

2.  One  of  the  earliest  cases  upon  this  subject  ^  was  decided  by 
the  Lord  Chancellor,  Cottenmam,  upon  full  aro:ument,  and  ijreat 
consideration,  as  early  as  183G.  But  as  this  case  professes  to 
rest  mainly  upon  a  leading  opinion  of  Lord  Chancellor  Eldon,^ 
upon  a  somewhat  analogous  subject,  it  may  not  be  improper  here 
to  give  the  substance  of  that  decision. 

3.  The  a]>plication  to  parliament  for  the  plaintiffs'  company,  if 
granted,  it  was  conceded,  would  injuriously  ali'ect  the  tolls  upon 
another  bridge  not  far  distant.  The  proprietors  of  this  bridge 
were  opposing  the  plaintiffs'  grant  before  the  parliamentary  com- 
mittee, with  a  view  to  secure  some  indemnity  against  such  loss,  to 
be  specially  provided  for  by  the  plaintiffs'  act,  upon  condition  that 
the  plaintiffs  should  open  their  bridge  for  the  public  travel.  The 
promoters  of  the  plaintiffs'  grant  and  the  proprietors  of  the  rival 
bridge  had  come  to  an  agreement  in  regai'd  to  the  extent  of  the 
indemnity,  aud  upon  naming  it  to  the  committee,  with  a  view  to 
have  it  inserted  in  the  act,  one  member  of  the  committee  objected 
to  such  course,  as  calculated  to  sanction  improjier  influences  uj)on 
public  legislation.     The   promoters  of  the  new  bridge  then  jn-o- 

Junction  Railway  Co.,  7  Eng.  L.  &  Eq.  124;  s.  c.  1  Sim.  x.  s.  58G;  Edwards 
V.  Grand  Junction  Railway  Co.,  1  Myl.  &  C  G'jO.  The  cases  in  sup|iort  of 
this  general  proposition  aic  very  numerous,  and  will  be  more  fully  examined 
in  the  next  section. 

^  Edwards  ;•.  Grand  Junction  Railway  Co.  supra. 

'  Vauxhall  Bridge  Co.  v.  Earl  Spencer,  Jacob,  64. 

VOL.  1,-2  ,  [n7] 


18  PRELIMINARY   ASSOCIATIONS.  [PART   I. 

posed  to  the  proprietors  of  the  rival  one  to  give  them  security  for 
the  proposed  indemnity,  by  way  of  bond  with  surety,  which  should 
quiet  their  opposition,  and  the  bill  pass.  This  was  acceded  to  and 
the  securities  given,  and  the  bill  passed  accordingly.  The  opinion 
*  of  Lord  Eldon  is  an  affirmance  of  the  decision  of  the  Vice-Chan- 
cellor,  retaining  the  bill  till  the  matter  should  be  tried  at  law.^ 
But  the  intimations  of  the  Chancellor  indicate  certainly  that  he 
regarded  the  contract  as  perfectly  valid,  and  the  bill  was  after- 
wards dismissed  by  consent.  Lord  Eldon  said :  "  In  the  view  1 
take  of  the  case,  it  will  not  be  an  obstacle  to  the  plaintiffs  that 
they  do  not  come  with  clean  hands,  for  it  is  settled,  that  if  a  trans- 
action be  objectionable,  on  grounds  of  public  policy,  the  parties  to 
it  may  be  relieved ;  the  relief  not  being  given  for  their  sake,  but 
for  the  sake  of  tlie  public.  Tlius  it  is  in  the  case  of  marriage  brocage 
bonds.  Tlie  principle  was  much  discussed  in  the  case  of  Neville 
V.  Wilkinson,'*  where  Mr.  Neville  being  about  to  marry,  inquiry 
was  made  by  the  lady's  father  to  what  extent  he  was  indebted. 
Wilkinson,  who  was  applied  to  at  the  desire  of  Neville,  concealed 
the  demand  which  he  had  against  him  ;  after  the  marriage  he 
attempted  to  recover  it,  and  a  bill  was  filed  to  restrain  him.  I 
remember  arguing  it  with  obstinacy,  but  Lord  Thurlow  thought 
that,  having  made  a  misrepresentation,  a  court  of  equity  must 
hold  him  to  it,  and  that,  although  the  plaintiff  was  a  j^articeps 
criminis  ;  so  it  was  held  in  the  case  of  Shirley  v.  Ferrers,''  in  the 
Exchequer. 

4.  "  It  is  argued  that  this  was  a  fraud  upon  the  legislature  ; 
but  I  think  it  would  be  going  a  great  way  to  say  so,  for  non 
constat,  if  it  had  been  pushed  to  the  extent  of  taking  the  opinion 
of  the  House,  that  it  might  not  have  passed  the  bill  in  its  former 
shape.  It  cannot  be  said  that  the  agreement  is  contrary  to  legis- 
lative policy,  because  one  member  of  the  committee  makes  an 
olijcction,  Avhich  is  not  sanctioned  or  known  by  the  House  at  large. 
Indeed,  such  things  are  constantly  done,  and  with  the  knowledge 
of  the  House ;  for  they  are  in  the  habit  of  saying,  with  respect  to 
these  private  acts,  that  though  they  will  not  of  themselves  pass 
them  into  laws,  yet  they  will  if  the  parties  can  agree  ;  and  matters 
sometimes  are  permitted  to  stand  over  to  give  an  opportunity  of 
coming  to  a  settlement. 

«  Vauxhall  Bridge  Co.  v.  Earl  Spencer,  2  Mad.  356. 

*  1  Br.  C.  C.  543.  6  Cited  11  Ves.  536. 

ri8] 


§  7.]  CONTRACTS   BETWEEN    PROMOTERS    AND    OrPORERS.  19 

5.  "  It  is  then  said,  that  the  money  was  to  be  paid  out  of  the 
funds  of  the  Vauxhall  JJridge  Company,  which  by  the  act  were 
devoted  to  other  purposes.  The  proprietors  of  Hattersea  Brid<re, 
however,  say  that  they  have  nothing  to  do  with  the  fmids  of  the 
*  company  ;  that  tliey  have  contracted  with  a  number  of  inde- 
pendent i>crsons,  to  whom  tliey  look  for  the  payment  of  the  bonds; 
and  if  the  obhgors  agree  with  the  company  to  pay  the  bonds  with 
their  money,  what  have  the  obligees  to  do  with  that  unless  by  ante- 
cedent contract  ?  They  had  no  demand  in  law  or  equity  against 
the  company.  If,  then,  the  Vauxhall  proprietors  choose  to  sanc- 
tion what  the  legislature  has  not  directed,  namely,  the  indemnify- 
ing the  persons  who  have  become  obligors  in  the  bonds,  that  is  one 
thing;  if  they  have  not,  then  the  individual  oflicers  who  have  paid 
the  money  over  in  discharge  of  the  bonds  ought  not  to  have  paid  it, 
and  may  now  be  called  on  to  pay  it  back ;  as  between  them  and 
the  company,  the  money  must  be  considered  as  being  still  in  their 
hands.  If  the  transaction  is  to  be  considered  merely  as  between 
the  obligors  and  the  obligees,  the  latter  not  refusing  the  money 
from  whatever  hands  it  came,  but  not  entangling  themselves  in  any 
contracts  between  the  obligors  and  the  company,  then  the  obligees 
would  not  be  affected  by  those  contracts.  But  if  so,  still  the  case 
depends  upon  the  validity  of  the  bonds ;  for  I  think  the  Vauxhall 
Bridge  Company  may  with  propriety  say,  if  the  money  was  paid  in 
consequence  of  an  arrangement  for  the  discharge  of  the  bonds,  and 
if  the  bonds  were  bad,  that  then  it  may  be  called  back.  When  the 
cause  was  heard  by  the  Vice-Chancellor,  he  did  that  which  he  was 
not  bound  to  do  ;  for  he  certainly  had  jurisdiction,  and  might  have 
decided  upon  the  validity  of  the  bonds.  But  he  directed  that  to 
be  tried  at  law,  where  all  the  objections  may  be  raised  upon  the 
pleadings  in  the  same  manner  as  here ;  and  considering  that  in 
matters  of  this  nature,  both  courts  of  law  and  equity  have  jurisdic- 
tion exercised  upon  the  same  principles,  I  do  not  see  any  occasion 
to  vary  the  decree." 

[•19] 


20  PRELIMINARY   ASSOCIATIONS.  [PART  I. 

SECTION  VII. 

Contracts  of  the  Promoters  enforced  in  Equity. 

Case  of  Edwards  v.  Grand  Junction  Railway. 

§  8.  1.  Edwards  v.  The  Grand  Junction  Railway,^  is  an  appli- 
cation to  a  court  of  equity  to  enforce  such  a  contract  against  a 
railway  company,  whose  charter  Mas  obtained  by  means  of  the 
quieting  opposition  in  parliament,  in  conformity  to  the  contract. 
*  The  trustees  of  a  turnpike  road  were  opposing  in  parliament  the 
grant  to  the  defendants,  unless  their  rights  were  guaranteed  in 
such  grant.  The  promoters  of  defendants'  charter,  and  the  trus- 
tees of  the  turnpike  road,  came  to  an  agreement  in  regard  to  the 
proper  indemnity  to  be  inserted  in  the  act,  but  to  save  delay  it 
was  secured  by  way  of  contract,  on  the  part  of  the  promoters, 
providing  for  a  renewal  of  the  covenants,  on  the  part  of  the  com- 
pany, in  a  brief  time  specified,  after  it  should  go  into  operation. 
The  controversy  in  the  present  case  was  with  reference  to  the 
widtii  of  a  bridge,  by  which  the  railway  proposed  to  convey  the 
turnpike  road  over  their  track.  The  contract  stipulated  that  such 
viaducts  should  be  of  the  same  width  as  the  road  at  that  point, 
which  was  fifty  feet.  The  charter  only  required  them  to  be  of 
the  width  of  fifteen  feet,  and  the  company  having  declined  to 
assume  the  contract  of  the  promoters,  were  proceeding  to  build 
the  bridges  thirty  feet  wide  only.  The  bill  prayed  an  injunction, 
which  was  granted  by  the  Vice-Chancellor,  and  confirmed  by  the 
Chancellor,  who  held  that  an  agreement  to  withdraw  or  withhold 
opposition  to  a  bill  in  parliament  is  not  illegal ;  that  a  court  of 
equity  will  enforce  a  contract  founded  upon  such  a  consideration ; 
and  that  an  incorporated  company  will  be  bound  by  the  agree- 
ment of  its  individual  meml)ers,  acting,  before  incorporation,  on 
its  behalf,  if  the  company  had  received  the  full  benefit  of  the 
consideration,  for  which  the  agreement  stipulated  in  its  behalf. 
The  opinion  of  the  Lord  Chancellor  will  best  show  the  grounds 
of  the  decision.  "  But  then  the  railway  company  contend  that 
they,  being  now  a  corporation,  arc  not  bound  by  anything  which 
may  have  passed,  or  by  any  contract  which  may  have  been  en- 

1  1  Myl.  &  C.  650. 
[*20] 


§  8.]  CONTRACTS  ENFORCED  IN  EQUITY.  21 

tcrcd  into  by  the  projectors  of  the  company  before  their  actual 
incorporation. 

2.  "  If  this  proposition  could  be  supported,  it  would  be  of  ex- 
tensive consequence  at  tliis  time,  when  so  nuieh  property  becomes 
every  year  subjected  to  the  power  of  the  many  incorporated  com- 
panies. The  objection  rests  upon  grounds  purely  technical,  and 
those  applicable  only  to  actions  at  law.  It  is  said  that  the  com- 
pany cannot  be  sued  upon  this  contract,  and  that  Moss  entered 
into  a  contract,  in  his  own  name,  to  get  the  company,  when  incor- 
porated, to  enter  into  the  ])roposed  contract.  It  cannot  be  denied, 
however,  that  the  act  of  Moss  was  the  act  of  the  projectors  of  the 
railway  ;  it  is,  therefore,  the  agreement  of  the  parties  who  were 
seeking  an  act  of  incorporation,  that,  when  incorporated,  certain 
things  should  *  be  done  by  them.  But  the  question  is,  not 
whether  there  be  any  binding  contract  at  law,  but  whether  this 
court  will  permit  the  company  to  use  their  powers  under  the  act 
in  direct  opposition  to  the  arrangement  made  witii  the  trustees 
prior  to  the  act,  upon  the  faith  of  which  they  were  permitted  to 
obtain  such  powers.  If  the  company  and  the  projectors  cannot  be 
identified,  still  it  is  clear  that  the  company  have  succeeded  to, 
and  arc  now  in  possession  of,  all  that  the  projectors  had  before ; 
they  are  entitled  to  all  their  rights,  and  subject  to  all  their  liabil- 
ities. If  any  one  had  individually  projected  such  a  scheme,  and 
in  prosecution  of  it  had  entered  into  arrangements,  and  then  had 
sold  and  resigned  all  his  interest  in  it  to  another,  there  would  be 
no  legal  obligation  between  those  who  had  dealt  with  the  original 
projector  and  such  purchaser ;  but  in  this  court  it  would  be  other- 
wise. So  here,  as  the  company  stand  in  the  place  of  the  pro- 
jectors, they  cannot  repudiate  any  arrangements  into  which  sucli 
projectors  had  entered.  They  cannot  exercise  the  powers  given 
by  parliament  to  such  projectors,  in  their  corporate  capacity,  and 
at  the  same  time  refuse  to  comply  with  those  terms,  upon  the 
faith  of  which  all  opposition  to  their  obtaining  such  i)owors  was 
withheld.  The  case  of  The  East  London  Water  Works  Comjiany 
V.  Bailey ,2  was  cited  to  prove  that,  save  in  certain  excepted  cases, 
the  agent  of  a  corporation  must,  in  order  to  bind  the  corporation, 
be  authorized  by  a  power  of  attorney ;  but  it  does  not  therefore 
follow  that  corporations  are  not  to  be  affected  by  equities,  whether 
created  by  contract  or  otherwise,  affecting  those  to  whose  position 

2  4  Biiig.  283. 

[•21] 


22  PRELIMINARY   ASSOCIATIONS.  [PART  I. 

they  succeed,  and  affecting  rights  and  property  over  which  they 
claim  to  exercise  control.  What  right  have  the  company  to 
meddle  with  the  road  at  all  ?  The  powers  under  the  act  give 
them  the  right ;  but  before  that  right  was  so  conferred,  it  had 
been  agreed  that  the  right  should  only  be  used  in  a  particular 
manner.  Can  the  company  exercise  the  right  without  regard  to 
such  an  agreement  ?  I  am  clearly  of  opinion  that  they  cannot ; 
and  having  before  expressed  my  opinion  that  the  contract  is 
sufficiently  proved,  it  follows  that  the  injunction  granted  by  the 
Vice-Chancellor  is  in  my  opinion  proper,  and  that  this  motion  to 
dissolve  it  must  be  refused  with  costs." 

3.  "  The  case  of  The  Vauxhall  Bridge  Company  v.  Earl  Spen- 
cer,3  was  cited  for  the  trustees ;  and  it  certainly  is  a  strong 
authority  in  favor  of  their  *  claim ;  Lord  Eldon  having  in  that 
case  expressed  an  opinion,  that  the  withdrawing  opposition  to  a 
bill  in  parliament  might  be  a  good  consideration  for  a  contract, 
and  having  recognized  the  right  of  an  incorporated  company  to 
connect  itself  with  a  contract  made  by  the  projectors  of  the  com- 
pany, before  the  act  of  incorporation.  On  the  other  hand  Dance 
V.  Girdler,^  was  cited  for  the  railway  company ;  but  that  was  an 
attempt  to  make  a  surety  liable  beyond  his  contract ;  and  Sir 
James  Mansfield,  in  his  judgment  in  that  case,  relied  much  upon 
the  want  of  identity  between  the  society  with  whom  the  contract 
was  made  and  the  corporation ;  and  the  question  there  was  as  to 
a  legal  liability,  not  as  to  an  equitable  right.  It  was  contended 
for  the  railway  company  that  to  enforce  this  equity  would  be 
unjust  towards  the  shareholders  of  the  company,  who  had  no 
notice  of  the  arrangement.  To  this  two  obvious  answers  may  be 
made :  first,  that  the  court  cannot  recognize  any  party  interested 
in  the  corporation,  but  must  look  to  the  rights  and  liabilities  of 
the  corporation  itself ;  and,  secondly,  that  there  is  nothing  in  the 
effect  of  the  injunction  inconsistent  with  the  provisions  of  the 
act ;  for  although  the  act  provides  that  bridges  shall  not  be  less 
than  fifteen  feet  in  width,  it  does  not  provide  that  they  shall  not 
be  made  wider.  The  company  might  under  this  act  clearly  agree 
that  this  or  any  other  bridge  should  be  fifty  feet  wide." 

8  2  Mad.  356,  Jac.  64  (i  Cond.  Ch.  Rep.  28).  ••  1  N.  R.  343. 

[,*22] 


§  9.]  CONTRACTS   OF   PROMOTERS   BIND   THE   COMPANY.  23 

SECTION   VIII. 

Contracts  of  the  Promoters  binding  on  the  Company  at  Law. 
Case  of  Howden  v.  Simpson. 

§  9.  1.  We  have  next  in  order  of  time  the  important  case  of 
Simpson  v.  Lord  Howden,^  before  the  Master  of  the  Rolls,  and  the 
Lord  Chancellor  on  appeal,  where  it  is  held,  that  equity  will  not 
interfere  to  decree  the  surrender  of  an  illegal  contract,  where  the 
illegality  appears  upon  the  face  of  the  contract,  the  remedy  at  law 
being  adequate.  We  have  then  the  same  case,  at  law,  before  the 
Queen's  Bcnch,^  and  decided,  on  full  argument,  where  it  is  held 
that  a  contract  to  pay  Lord  Howden  £5,000,  in  consideration  of 
*  his  withdrawing  opposition  to  a  bill  for  incorjiorating  "  The 
York  &  North  Midland  Railway  Company,"  he  being  a  peer  in 
parliament,  and  owning  estates  in  the  vicinity  of  the  proposed 
line,  was  illegal,  being  a  fraud  upon  the  legislature.  This  deci- 
sion was  subsequently  reversed  in  the  Exchequer  Chamber.^  The 
case  being  the  leading  case  upon  the  subject,  at  law  certainly, 
may  require  a  more  extended  statement.  The  agreement  under 
seal,  between  the  plaintiff  and  defendant  (the  case  now  standing, 
Howden  v.  Simpson),  recited  that  a  company  had  been  formed  for 
making  a  railway  ;  that  defendants  were  proprietors ;  that  a  bill 
had  been  introduced  into  parliament,  according  to  which  the  lino 
would  pass  through  plaintiff's  estates  and  near  his  mansion,  and 

»  1  Railw.  Cas.  32G;  1  Keen,  583;  3  Myl.  &  C.  97. 

2  10  A.  &  E.  793. 

8  The  case  was  reversed  mainly  on  the  ground  that  the  plea  did  not  allege 
that  the  parties,  at  the  time  of  entering  into  the  contract,  intended  to  keep  it 
secret  from  the  legislature.  10  A.  &  E.  793;  1  Railw.  Cas.  317.  Rut  the 
Exchequer  Chamber  held  that  the  agreement  was  prima  fhcie  valid,  that  tlie 
plaintift'  was  not  bound  to  communicate  to  parliament  the  bargain  lie  had 
made  with  tlie  company,  and  that  a  member  could  make  any  terms  for  the 
sale  of  his  land,  and  compensation  for  injury  to  his  comforts  and  property, 
which  a  private  individual  might  make.  That  judgment  was  affirmed  in  the 
House  of  Lords,  on  full  argument,  before  the  Chancellor,  Lord  Lyndhukst, 
Lord  RuouGHAM,  the  two  cliief  justices,  and  ten  of  the  judges.  3  Railw. 
Cas.  '2l»4;  s.  c.  9  CI.  &  F.  61.  But  Lord  C.\mimum.l  adhered  to  his  former 
opinion  that  the  contract  should  be  held  illegal,  if  it  was  an  element  that  it 
should  be  kept  secret,  and  not  communicated  to  parliament. 

[*23J 


24  PRELIMINARY   ASSOCIATIONS.  [PART   I. 

that  he  was  a  dissentient,  and  opposed  the  passing  of  the  bill ; 
that  defendants  had  proposed  that,  if  he  would  withdraw  his 
opposition,  and  assent  to  the  railway,  they  would  endeavor  to 
deviate  the  proposed  line  :  and  plaintiff  agreed  that,  on  condition 
of  the  stipulations  in  the  agreement  being  performed,  he  did 
thereby  withdraw  his  opposition  and  give  his  assent ;  and  defend- 
ants covenanted  that  in  case  the  then  bill  should  be  passed  in  the 
then  session,  they  would,  in  six  months  after  it  received  the  royal 
assent,  pay  plaintiff  X5,000  as  compensation  for  the  damage 
which  his  residence  and  estates  would  sustain  from  the  railway 
passing  according  to  the  deviated  line,  exclusive  of  and  without 
prejudice  to  further  compensation  to  plaintiff,  in  the  event  of  the 
deviated  line  not  being  ultimately  adopted,  and  without  prejudice 
to  such  further  compensation  for  any  damage  as  in  the  agreement 
after  mentioned. 

2.  Plaintiff  declared  in  debt,  and  averred  that  he  withdrew  his 
opposition  to  the  bill,  which  passed  into  a  law  in  the  then  session, 
*that  six  months  had  since  elapsed,  but  that  defendants  had  not 
paid  the  X5,000. 

3.  Plea,  that  the  railway,  at  the  time  of  making  the  agreement, 
and  according  to  the  act,  was  intended  to  pass  through  the  lands 
of  divers  individuals ;  that  the  agreement  was  made  privately  and 
secretly  by  the  parties  thereto,  without  the  consent  or  knowledge 
of  the  said  individuals,  and  Avas  concealed  from  them  continually 
until  the  act  was  passed,  and  was  not  disclosed  to,  or  known  in 
parliament,  and  was  concealed  from  the  legislature  during  the 
passing  of  the  act ;  and  that  plaintiff  at  the  time  of  passing  the 
act  and  still  was  a  peer  of  parliament. 


SECTION    IX. 

What  Contracts  between  the  Promoters  of  Railways  and  Others 
will  he  enforced^  either  in  Law  or  Equity,  against  the  Contract- 
ing Parties  or  the  Company. 

1.  Contract  to  take  land  of  opposing  party.  I      n.  3.  Otlier  contracts  which  the  courts 

2.  Contract  prejudicial  to  the  public.  |  will  enforce. 

§  10.    1.  Since  the  decison  of  Howden  v.  Simpson,  in  the  Ex- 
chequer Chamber,  and  the  House  of  Lords  (1842),  the  English 
[*24] 


§  10.]        WHAT  CONTRACTS  WILL  BE  ENFORCED.  25 

courts  seem  to  have  acquiesced  in  the  principles  there  establisliod, 
until  a  very  recent  period.  Tiic  validity  of  such  a  contract  is 
recognized,  in  regard  to  the  company  purchasing  the  interest  uf 
the  lessee  of  lands  near  the  line  of  the  proposed  railway. ^  And 
where  the  promoters  of  one  railway  entered  into  an  agreement 
with  a  land-owner  on  the  proposed  line  to  take  his  land  at  a 
specified  price  (£20,000),  by  whicii  lie  was  induced  to  withdraw 
opposition  ;  and  the  promoters  of  a  rival  line,  who  proposed  also 
to  pass  through  the  same  land,  had  petitioned  for  a  charter,  and 
the  merits  of  the  two  i)rojects  were,  under  the  sanction  of  the 
committee  of  the  House  of  Commons,  referred  to  arbitration,  and 
the  solicitors  of  the  two  bills  agreed  that  the  adopted  line  sliould 
take  the  engagements  entered  into  with  the  land-owners,  by  the 
rejected  line,  —  it  was  held,  that  the  second  company  prevailing, 
were  bound,  as  a  condition  of  entering  upon  the  lands  of  plaintiff, 
to  fullil  the  terms  of  the  agreement  of  the  first  company .^ 

*2.  And  where  one  railway  company  was  prohibited  from  open- 
ing their  line  for  traffic,  until  they  had  built  a  branch  railway 
connecting  their  line  with  that  of  another  company,  it  was  held, 
that  a  court  of  equity  was  bound  to  enforce  the  prohibition,  on 
motion  of  the  other  company,  though  the  probable  result  would 
be  to  cause  inconvenience  to  the  public,  and  not  to  benefit  tlie 
other  company."^ 

^  Doo  V.  London  &  Croydon  Railway  Co.,  1  Railw.  Cas.  257;  s.  c.  3  Jur. 
258. 

2  Stanley  v.  Chester  &  Birkenhead  Railway  Co.,  1  Railw.  Cas.  58;  9  Sim. 
264. 

'  Cromford  Sc  High  Peak  Railway  Co.  v.  Stockport,  Disloy  &  Whaley 
Bridge  Railway  Co.,  24  Beav.  74;  s.  c.  29  Law  T.  245. 

There  are  also  other  contracts  which  tlie  courts  will  enforce.  Thus  in  Low 
«;.  Connecticut  &  Passunipsic  Railroad  Co.,  45  N.  H.  370;  s.  c.  1  Redf.  Am. 
Railw.  Cas.  1,  where  the  question  was  as  to  the  right  of  those  who  had  ren- 
dered services  in  promoting  the  subscription  to  the  stock  of  the  corporation  to 
compensation,  after  full  discussion  it  was  held  that  the  corporation,  having 
elected  to  take  t!»e  benefit  of  the  services  knowing  that  they  were  rendered 
with  the  understanding  that  compensation  should  be  made,  must  take  the 
benefit  with  the  burden.  This  case,  however,  seems  tti  have  proceeded  on  the 
authority  of  Hall  o.  Vermont  &  Massachusetts  Railroad  Co.,  28  Vt.  401;  and 
it  may  be  doubted  if  the  rule  there  adopted,  charging  to  the  corporation  ser- 
vices rendered  in  effecting  its  organization,  is  not  too  lax  and  too  su.sceptible 
to  abuse,  and  if  there  should  not  be  proof  that  the  corporation  promised  to 

pay- 
So  where  a  private  company,  having  leased  land  with  a  clause  for  re-entry, 

[*2o] 


26  PRELIMINARY   ASSOCIATIONS.  [PAET  I. 

SECTION   X. 
Courts  of  Equity  will  enforce  Contracts  with  the  Promoters^ 

1.  Dona  fide  contract  not  evasive  of  statute,  valid. 

§  11.  The  English  courts  of  equity  do  not  hesitate  to  restrain 
railways  from  proceeding  to  take  land  under  their  compulsory 
powers,  where  the  proprietor  of  the  estates  had  surceased  oppo- 
sition to  the  bill,  by  an  arrangement  with  the  projectors,  by 
which  they  stipulated  that  the  company  should  pay  a  certain  sum, 
which  it  had  declined  to  do.  This  was  done,  notwithstanding  the 
proprietor  was  a  peer  of  parliament,  and  notwithstanding  the 
tender  of  an  undertaking  on  the  part  of  the  company  not  to 
enter  upon  the  land  until  the  further  order  of  the  court,  and  not- 
withstanding the  time,  within  which  the  company  by  their 
charter  were  authorized  to  take  land,  would  have  expired  before 
the  hearing  of  the  cause.^  And  although  this  case  is  questioned 
by  some  writers,^  the  learned  Lord  Chancellor  St.  Leonards  said 
the  cases  establish  the  proposition,  that  a  bona  fide  contract  of 
this  sort,  not  evading  the  act  of  parliament,  but  enabling  the  com- 
pany to  assist  its  views,  and  carry  the  act  into  effect,  was  valid, 
without  reference  to  the  reasonableness  of  the  amount  agreed  to 
be  paid.3 

becomes  incorporated  by  a  charter  expressly  providing  that  all  prior  contracts 
shall  be  binding,  the  corporation  may  maintain  ejectment.  Loudon  Dock  Co. 
i;.  Knebell,  2  Macl.  &  R.  60. 

But  one  railway  company  cannot  bind  itself  to  defray  the  expense  of  an 
application  to  parliament  by  another  company  for  the  establishment  of 
another  line  expected  incidentally  to  benefit  the  first  company.  Such  a  con- 
tract is  beyond  the  powers  of  a  railway  company,  and  so  illegal;  and  such  a 
covenant  cannot  be  enforced  at  law,  however  beneficial  to  the  covenantor  if 
carried  out.  I^ast  Anglian  Railway  Co.  v.  Eastern  Counties  Railway  Co.,  11 
C.  B.  775;  s.  c  7  Eng.  L.  &  Eq.  505;  Macgregor  v.  Dover  &  Deal  Railway 
Co.,  18  Q.  B.  618;  s.  c.  16  Q.  B.  180;  infra  §§  5G,  137.  See  infra  §  12,  note  3. 
See  also  infra  §  13,  note  2. 

1  Petre  v.  Eastern  Counties  Railway  Co.,  1  Railw.  Cas.  462. 

2  Shelf.  Railw.  400. 

8  Ilawkes  v.  Eastern  Counties  Railway  Co.,  1  De  G.  M.  &  G.  737;  8.  o. 
15  Eng.  L.  &  Eq.  358;  s.  c.  before  the  Vice- Chancellor,  3  De  G.  &  S.  314; 
8.  c.  4  Encr.  L.  &  Eq.  91. 
[*25J 


§  12.]  CONTRACTS    ENFORCED    IF   RAILWAY    ABANDONED.  27 

♦SECTION  XI. 

Such  Contracts  enforced  where  the  Railway  is  abandoned. 

1.  Wlicre  a  certain  sum  is  to  be  paid  to  I  2.  Merely  provisional  contracts  not  al- 
quiet  opposition.  I  ways  ent'orced. 

§  12.  1.  It  has  sometimes  been  held,  that  an  absolute  agree- 
ment made,  by  the  promoters  of  a  railway,  to  j)ay  one  a  certain 

*  Sinn  to  quiet  opposition,  is  valid,  notwilhstandini^  the  contem- 
plated work  is  never  carried  forward,  and  the  injury  to  the 
opposcr,  *  which  the  contract  of  quietus  assumes,  is  never  sus- 
tained.^    But  such  a  contract  is  certainly  based  upon  a  principle 

*  of  very  questionable  policy,  and  courts  would  more  incline  to 
give  the  contract,  when  consistent  with  the  words  used,  such  a 

*  construction,  that  it  shall  be  the  purchase  of  a  pecuniary  inter- 
est, or  indemnification  for  a  pecuniary  loss,  which  are  legitimate 

*  subjects  of  bargain  and  sale,  than  to  regard  it  as  the  purchase 
of  good-will,  or  the  price  of  converting  ill-will  unto  favor,  which 

*  are  certainly  not  regarded  ordinarily  as  the  just  basis  of  cou- 
tracts.2 

*  2.  But  in  many  cases  these  provisional  contracts  have  been 
enforced,  notwithstanding  the  projected  works  have  been  aban- 
doned."^    *  But  where  the  contract  is  a  mere  arrangement  to  pur- 

»  Bland  r.  Crowley,  0  Railw.  Cas.  75G;  s.  c.  6  Exch.  522. 

2  Ganfe  t'.  Newmarket  Railway  Co.,  18  Q.  R.  457;  s.  c.  7  Railw.  Cosk.  168; 
8.  c.  11  Eiig.  L.  &  Eq.  57;  I'orcher  v.  Gardner,  U  Jur.  4.3:  19  L.  J.  63; 
8  C.  B.  4G1 ;  Shelf.  Railw.  402.  See  also  Cumberland  Valley  Railway  Co.  r. 
Baab,  0  Walts,  458;  Hawkes  v.  Eastern  Counties  Railway  Co.,  1  I)e  O.  M. 
&  G.  737;  s.  c.  3  De  G.  &  S.  314;  7  Railw.  Cas.  219;  s.  c.  4  Eng.  L.  &  Eq. 
91.  But  see  Hodges  Railw.  IGi,  where  it  is  said  to  be  settled  that  asfree- 
nients  for  the  purcliase  of  lands  and  the  withdrawal  or  witliholding  of  opjmsi- 
tion  to  a  bill  are  not  illegal.  And  see  also  Caj^per  v.  Lindsey,  3  II.  E.  Cas. 
293;  s.  c.  14  Eng.  L.  &  Eq.  9,  where  a  contract  in  effect  fdr  the  taking  of 
land  if  desirable  and  for  the  quieting  of  opposition  was  assumed  to  be  legal, 
and  which,  being  thoroughly  considered,  ought  perhaps  to  be  taken  as  the 
final  determination  of  the  Engli.sh  courts. 

*  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  Rail- 
way Co.,  3  Macn.  &  G.  70;  s.  c.  20  L.  J.  Ch.  90;  s.  c.  14  Jur.  921 ;  1  Eng. 
L.  &  Eq.  122;  Ilawkea  v.  Eastern  Counties  Railway  Co.,  3  De  G.  &  S.  314; 
8.  c.  20  L.  J.  243;  s.  c.  4  Eng.  L.  &  Eq.  91;  Preston  v.  Liverpool,  Manchester 

[*26-»34] 


28  PRELIMINARY  ASSOCIATIONS.  [PART  I. 

chase  land  at  a  specified  price,  for  the  purpose  of  building  the 

*  railway,  and  the  quieting  of  opposition  does  not  enter  into  the 
consideration,  the  company  are  not  bound  to  pay  over  the  money, 

*  unless  they  enter  upon  some  portion  of  the  land,  and  under 
such  circumstances  an  absolute  covenant  to  pay  the  money,  by 
the  company,  would  be  ultra  vires  and  void.* 

&  Newcastle-upon-Tyne  Junction  Railway  Co.,  1  Sim.  n.  s.  58G;  7  Railw. 
Cas.  1;  7  Eng.  L.  &  Eq.  12i.  In  liawkes  v.  Eastern  Counties  Railway  Co., 
1  De  G.  M.  &  G.  737;  s.  c.  15  Eng.  L.  &  Eq.  358;  s.  c.  3  De  G.  &  S.  314; 
s.  c.  4  Eng.  L.  &  Eq.  91,  it  was  considered  that  a  railway  company,  having 
agreed  to  purchase  an  estate,  although  moved  to  do  so  for  the  quieting  of 
opposition  to  a  bill  to  enable  it  to  extend  a  branch  subsequently  abandoned, 
was  nevertheless  bound  to  perform  its  agreement.  See  also  Shelf.  Railw.  400. 
The  case  of  Hawkes  v.  Eastern  Counties  Railway  Co.  came  before  the  Lord 
Chancellor,  St.  Leonards,  on  appeal  from  the  Vice-Chancellor  in  1852,  when 
the  entire  subject  of  the  legality  of  such  contracts,  as  well  as  the  propriety  of 
decreeing  specific  performance,  was  discussed,  and  most  of  the  cases  reviewed 
and  compared.  The  conclusion  reached  was  that  even  where  the  company  is 
not  able  to  carry  its  project  into  full  effect,  but  has  abandoned  it,  it  is  never- 
theless bound  specifically  to  perform;  and  that  it  is  no  objection  to  a  decree, 
that  it  involves  the  necessity  of  paying  the  price  of  the  land  out  of  general 
funds  raised  for  provisional  purposes  merely,  with  no  view  of  ultimately  pur- 
chasing land  and  building  the  road,  nor  that  the  land  can  be  of  no  use  to  the 
company  in  present  circumstances.  One  can  scarcely  fail  to  perceive  that  in 
this  decision  a  principle,  perhaps  sound  and  just  in  some  circumstances,  is 
pushed  quite  to  its  limit.  Damages  at  law  might  have  been  tlie  more  proper 
disposition  of  all  interests  concerned.  The  judgment  was  affirmed,  however, 
in  tlie  House  of  Lords,  5  H.  L.  Cas.  331 ;  s.  c.  35  Eng.  L.  &  Eq.  8,  and  ela- 
borate opinions  delivered,  by  Lord  Chancellor  Cranworth,  Lord  Campbell, 
and  Lord  St.  Leonards.  The  decision  there  was  obviously  put  somewhat 
on  the  ground  of  the  peculiar  state  of  facts,  — that  it  was  a  contract  under  the 
seal  of  an  existing  company,  and  not  the  contract  of  the  projectors  of  a  con- 
templated company  merely;  and  that  though  the  contract  had  re.spect  to  an 
extension  of  the  existing  line,  by  means  of  a  branch  line,  which,  as  to  the 
existing  shareholders,  the  company  had  no  right  to  construct,  and  even  with 
the  con.sent  of  the  legislature  could  not  construct,  with  funds  of  the  existing 
company,  yet  nothing  of  that  seemed  to  have  been  known  to  the  other  party. 
*  Gage  V.  Xewmarket  Railway  Co.,  18  Q.  B.  457;  s.  c.  14  Eng.  L.  &  Eq. 
57.  The  views  of  Lord  CAMPnELL  in  this  case  do  not  seem  to  be  altogether 
reconcilable  with  those  expressed  by  the  Lord  Chancellor,  in  Hawkes  v.  East- 
ern Coimties  Railway  Co.,  but  they  seem  more  consi.stent  with  the  views  lield 
in  this  country,  upon  analogous  subjects,  and  may  be  expected  to  find  more 
favor  in  the  English  courts  when  the  pressure  of  circumstances  shall  be  re- 
moved by  lapse  of  time.  See  infra  §  IG,  and  notes.  And  see  Edinburgh, 
Perth,  &  Dundee  Railway  Co.  i'.  Philip,  2  Macq.  Ap.  Cas.  514;  s.  c.  28  Law 
[*35,  *36] 


§13.] 


PRACTICE   IN    DECREEING   SPECIFIC   PERFORMANCE. 


29 


*  In  an  important  casc^  before  the  House  of  Lords,  the  doctrine 
of  the  former  cases  is  assumed  to  have  established  the  ijr<jj)(j,si- 
tion,  that  the  acts  of  ))arliamciit  to  railway  C(jmpanies,  enipcjwcr- 
in,!^  th(Mn  to  buihl  railways,  are  enablint^  and  not  obligatoiy  in 
their  nature.  And  it  was  hero  considered,  that  upon  a  contract 
whereby  the  comi)aMy  before  obtaining  their  act  executed  a  de- 
benture bond  in  the  sum  of  £14,500  to  one  of  the  land-owners,  as 
the  sum  to  be  paid  *  him  before  breaking  ground,  taking  a  counter 
obligation  to  repay  the  sum  if  the  bill  should  not  pass,  and,  having 
obtained  their  act  but  never  exercised  its  powers  or  built  their 
road,  it  must  be  held,  that,  upon  the  fair  construction  of  the 
whole  transaction  with  reference  to  the  more  recent  view  taken 
by  the  courts  of  the  law  applicable  to  such  contracts,  the  money 
stipulated  was  not  due  the  laud-owner  except  upon  the  company 
breaking  ground  for  the  purpose  of  constructing  their  works. 


SECTION  XII. 


Practice  of  Courts  of  Equity  in  decreeing  Specific  Performance. 


1.  Mutual    arrangements    protected    in 

Cliancery. 

2.  But  decisions  are  conflicting.    In  cases 


of  doubtful  right  plaintiff  is  remitted 
to  fomnionlaw  remedies. 
71.  2.  Statement  of  cases. 


§  13.  1.  The  English  courts  of  chancery  have  in  many  in- 
stances enforced  specific  performance  of  contracts  between  dif- 
fei'cnt  lines  of  railway,  fixing  mutual  arrangements  in  reference 
to  their  future  operations,  even  where  acts  of  jiarliameut  were 
necessary  to  carry  such  contracts  into  full  effect,  and  souiofiuics, 
after  a  change  of  circumstances  materially  affecting  the  intrrest 
of  the  parties  concerned.  And  those  courts  have  often  enforced 
an  injunction,  in  cases  of  this  kind,  where  interests  of  great  mag- 
nitude were  concerned,  even  where  the  right  of  the  jilaintilT  was 

T.  315,  39  Eng.  L.  &  Eq.  41.  If  such  a  contract  i.s  made  in  advance  of  tlio 
charter  and  with  reference  to  its  being  obtained,  it  i.s  to  be  viewed  a.s  if  made 
afterwards;  and  it  may  be  enforced  though  part  of  the  sum  agreed  to  be  paid 
was  for  the  annoyance  caused  by  the  works,  which  woidd  not  accrue  if  the 
road  were  not  built,  or  the  land  not  taken.  Taylor  r.  Chichester  &  ^lidhiust 
Railway  Co.,  Law  Rep.  4  II.  L.  C28. 

6  Scottish  Northeastern  Railway  Co.  v.  Stewart,  5  Jur.  n.  s.  607;  3  Macq. 
Ap.  Cas.  382. 

[•37,  *Z2>-] 


30  PRELIMINARY   ASSOCIATIONS.  [PART  I. 

questionable,  upon  the  ground  that  things  were  required  to  be 
kept  in  a  safe  train,  until  the  rights  of  the  respective  parties 
could  be  definitely  determined.^ 

2.  But  the  practice  of  the  English  courts  of  equity,  in  regard  to 
this  subject,  resting  chiefly  in  discretion,  as  might  be  expected, 
is  very  variable,  and  the  cases  not  easily  reconcilable.  In  many 
cases,  where  the  right  of  the  plaintiff  is  doubtful,  the  injunction 
to  stay  the  progress  of  the  road  till  the  contract  was  performed 
has  been  denied,  and  the  party  remitted  to  his  rights  in  a  court  of 
law.2  The  latter  course  would  seem  to  be  most  consistent  with 
*  the  ordinary  proceedings  of  courts  of  equity,  in  applications  for 
specific  performance. 

1  Great  Western  Railway  Co.  v.  Birmingham  &  Oxford  Junction  Railway 
Co.,  2  Phillips,  597.  The  remarks  of  Lord  Chancellor  Cotteniiam  in  this 
case  strongly  defend  the  practice  of  enforcing  contracts  made  by  the  pro- 
jectors of  railways  against  the  company  itself,  after  it  comes  into  operation. 

2  Webb  V.  Direct  London  &  Portsmouth  Railway  Co.,  1  De  G.  M.  &  G. 
521;  8.  c.  9  Eng.  L.  &  Eq.  249.  Vice-Chancellor  Turxkk,  Avhen  the  case 
was  before  him,  seemed  to  regard  the  plaintiff  as  entitled  to  specific  perform- 
ance, but  the  Lords  Justices,  on  appeal,  entertained  no  doubt  that  the  party 
should  be  remitted  to  his  rights  in  a  court  of  law.  See  Preston  v.  Liverpool, 
Manchester  &  Newcastle  Junction  Railway  Co.,  1  Sim.  n.  s.  586;  s.  c.  7  Eng. 
L.  &  Eq.  124:.  The  Court  of  Appeal,  in  a  similar  case,  Stuart  v.  London  & 
Northwestern  Railway  Co.,  1  De  G.  M.  &  G.  721;  s.  c.  7  Railw.  Cas.  44;  11 
Eng.  L.  &  Eq.  112,  put  its  refusal  to  decree  specific  performance  on  the 
ground,  that  the  remedy,  if  any,  was  at  law;  and  that  there  was  no  mutuality, 
as  after  the  abandonment  or  material  departures  from  the  scheme,  the  railway 
could  not  hold  the  land  to  any  beneficial  purpose.  Lord  Chancellor  St. 
Lkoxards  seemed  also  to  be  of  opinion  that  the  only  ground  on  which  the 
decision,  in  AVebb  v.  London  &  Portsmouth  Railway  Co.,  1  De  G.  M.  &  G. 
521;  s.  c.  9  Eng.  L.  &  Eq.  249,  could  be  vindicated,  was  the  want  of  mutu- 
ality. But  it  would  seem,  that  all  cases  of  this  class  where  contracts  have 
been  made  to  take  land,  either  at  a  given  price  per  acre  or  for  a  gross  sum, 
or  to  pay  a  sum  of  money  for  the  damage  to  an  estate  in  gross,  should  be  re- 
garded as  conditional,  unless  the  contrary  appears  in  express  terms,  or  by  the 
clearest  implication.  Any  other  view  gives  these  contracts  very  much  the  air 
of  wagering  policies  or  legislative  gambling.  See  also  on  this  subject,  Potts 
V  Thames  Haven  Dock  &  Railway  Co.,  15  Jur.  1004;  s.  c.  7  Eng.  L.  &  Eq. 
202,  where  a  query  was  suggested,  whether  a  specific  performance  could  be 
decreed,  there  having  been  no  valuation  of  the  land,  and  great  delay  on  the 
part  of  the  company,  owing  to  pecuniary  embarrassment;  but,  after  discus- 
sion, it  was  agreed  to  give  the  company  further  time,  and  the  claim  was 
ordered  to  stand  over. 

In  Strasburg  Railway  Co.  v.  Echternacht,  21  Penn.  St.  220,  where  several 
persons  agreed  that  if  the  company  should  be  incorporated  with  certain  privi- 
[*39] 


§  14.]  SPECIFIC    PERFORMANCE   IN    COURTS   OF    EQUITY.  31 

♦SECTION   XIII. 

Specific  Performance  in  Courts  of  Equity. 

Object  of  courts  to  compel  good  faith  when  a  ckfinite  contract  is  made. 

§  14.  But  tlic  courts  of  equity  have  been  mainly  influenced  by 
what  they  esteem  the  pohcy  of  enforcing  these  parliamentary  cun- 
tracts,  *  for  the  arrangement  of  conflicting  interests,  in  regard  to 
such  projected  railways.  And  they  have  declined  to  interfere  by 
*  injunction,  where  no  such  contract  had  been  definitely  made,' 
notwithstanding  such  representations  on  the  part  of  the  promo- 
ters as  misled  the  agents  of  the  land-owner.  Thus  showing,  very 
explicitly,  that  the  main  ground  upon  which  the  English  courts  of 
equity  have  proceeded,  in  decreeing  specific  performance,  and  en- 
forcing it  by  injunction,  has  been  to  compel  good  faith  on  the  part 
of  such  incorporations,  in  carrying  into  effect  any  contracts  on 
their  part.  For  it  is  said  by  the  English  courts,  having  obtained 
advantages  in  consequence  of  the  contracts  and  assurances  of  the 
agents  employed  in  the  projects,  it  would  tend  to  destroy  all  con- 
fidence in  any  such  arrangement  if  they  were  not  enforced,  which 
would  be  of  evil  example  and  tend  to  great  practical  inconveni- 
ence. But  where  the  parties  stand  upon  their  legal  rights,  as 
secured  in  the  act  of  incorporation,  a  court  of  equity  will  not 
interfere.^     In  a  later  case  these  *  provisional  contracts  seem  to 

loges,  tliey  would  subscribe  the  number  of  shares  set  opposite  tlieir  nami^s 
respectively,  and  the  charter  was  obtained  with  the  privilecjes  in  question, 
but  one  of  the  subscribers  refused  to  take  the  stock,  it  was  held,  that  the 
promise  was  without  consideration,  and  therefore  not  a  contract,  but  a  mere 
naked  expression  of  intention,  which  equity  ^YOuId  not  enforce  by  decree  for 
specific  performance,  and  that  if  it  was  a  binding  agreement  it  should  be 
enforced  at  law. 

In  Lindsay  t;.  Great  Northern  Railway  Co.,  10  Hare,  605;  s.  c.  10  Eng. 
L.  &  Eq.  87,  the  court  decreed  specific  performance  of  a  contract  that  trains 
should  stop  at  a  particular  station,  but  gave  the  company  time  to  nuake  the 
necessary  arrangements  before  making  the  decree  absolute. 

In  Ileathcote  v.  North  Staffordshire  Railway  Co.,  6  Railw.  Cas.  358,  it  was 
held  tliat  a  contract  to  make  a  railway  is  not  one  of  which  a  Court  of  Equity 
will  compel  specific  performance. 

^  Hargreaves  v.  Lancaster  &  Prestt)n  J.  Railway  Co.,  1  Railw.  Cas.  -110. 

2  Aldred  v.  North  Midland  Railway  Co.,  1  Railw.  Cas.  404;  Eton  College 
V.  Great  Western  Railway  Co.,  1  Railw.  Cas.  200.     Where  the  plaintiff  had 

[*40-»43J 


32  PRELIMINARY   ASSOCIATIONS.  [PART   I. 

be  regarded  as  conditional,  depending,  ordinarily,  for  their  obli- 
gation, as  against  the  corporation,  upon  their  having  done  any- 
tliing  under  their  charter  which  the  agreement  enabled  them  to 
do,  so  as  thereby  to  have  received  the  benefits  of  it.^ 


SECTION  XIV. 

Courts  of  Equity  may  restrain  a  Party  from  Opposition  or  Peti- 
tion in  Parliament. 

1.  Such  cases  not  common  in  practice.       |  2.  Such  cases  not  readily  recognized. 

§  15.  1.  It  is  held  in  the  English  courts  of  equity  altogether 
competent  and  within  their  appropriate  jurisdiction,  to  restrain  a 
party  from  opposing  a  bill  in  parliament  by  petition,  if  a  proper 
case  is  made  out,  and  by  parity  of  reason  from  pursuing  a  petition 
in  favor  of  an  act  of  parliament.^  But  such  cases  are  not  com- 
mon in  practice,  *  and  dependent  upon  peculiar  circumstances, 
as  where  proceedings  in  parliament  are  in  violation  of  express 
covenants,  or  for  some  other  reason  in  bad  faith,  and  where  dam- 
incurred  expense  in  bringing  the  scheme  of  a  proposed  railway  before  the 
public,  and  in  consideration  thereof  the  promoters  had  agreed  that  the  com- 
pany should  pay  him  a  certain  sum  at  a  certain  point  of  its  success,  the  con- 
tract was  enforced  although  the  company  never  went  into  full  operation. 
Touche  V.  Met.  Railway  Co.,  Law  Kep.  G  Ch.  671. 

3  Gooday  v.  Colchester  &  Stour  Valley  Railway  Co.,  17  Beav.  132;  s.  c.  1-5 
Eng.  L.  &  Eq.  596.  In  this  case,  where  it  appeared  that  after  the  act  was 
obtained  nothing  was  done  nor  any  step  taken  to  construct  the  railway,  the 
Master  of  tlie  Rolls  held  that  he  could  not  say  that  the  company  had  adopted 
the  agreement,  or  was  bound  by  its  terms.  In  "Williams  v.  St.  George's 
Harbor  Co.,  30  Law  T.  84;  s.  c.  2  De  G.  &  J.  547,  it  was  held  that  an 
agreement  entered  into  by  the  promoters  of  a  company  before  incorporation 
is  not  binding  on  the  company  when  incorporated,  unless  it  subsequently 
does  some  act  amounting  to  an  adoption  of  it.  This  seems  now  to  be  the  set- 
tled doctrine  in  the  Ensrlish  courts.     See  supra,  §  3. 

1  Stockton  &  Hartlepool  Railway  Co.  v.  Leeds  &  Thirsk  Railway  Co., 
2  rhillips,  666;  s.  c  5  llailw.  Cas.  691.  In  this  case  the  injunction  was 
granted  by  Vice-Chancellor  Shadwell;  but  the  order  was  di.scharged  by 
Lord  Chancellor  Cotteniiam,  on  the  ground  that  no  proper  case  for  the  inter- 
ference of  a  court  of  equity  was  made  out;  but  the  jurisdiction  was  distinctly 
affirmed.  And  see  lleathcote  v.  North  Staffordshire  Railway  Co.,  6  Railw. 
Cas.  358. 

[*44] 


§1G.] 


CONTRACTS    AGAINST   SOUND    POLICY, 


88 


ages  at  law  arc  no  adequate  compensation.  These  cases  are  there- 
fore determined  much  upon  the  same  grounds  as  other  cases  of 
specific  performance,  and  come  properly  under  consideration  in 
this  connection. 

2.  In  one  case,  where  the  company  had  quieted  opposition  by 
inserting  a  clause  in  the  act  to  enable  them  to  buy  land,  which 
they  had  agreed  to  purchase  as  the  price  of  quieting  the  opposi- 
tion, and  afterwards  applied  for  an  act  enabling  them  to  abandon 
this  branch,  and  repealing  this  clause,  it  was  held,  that,  although 
the  court  had  power  to  restrain  an  application  to  parliament,  it 
was  diOicult  to  conceive  a  case  in  which  it  would  do  so,  and  that 
it  would  not  do  so  in  this  case.'^ 


SECTION   XV. 

Contracts  to  icitJidraw  opposition  to  Railway  Projects,  and  to  keep 
this  secret,  against  Sound  Policy,  and  u'ould  seem  to  he  illegal. 


1.  Principle   of  foregoing   decisions   ob- 

scure. 

2.  Not  adopted   in   this   country   unless 

terms  inserted  in  ch.irter. 
8.  Recent   change  of  views   in   English 

courts. 
8-5.  Statement    of    late   case   in    which 
priiuiiple    of    Edwards    v.    Grand 
Junction  Kail  way  is  doubted. 


G.  Act   of   incorporation   should    not   be 
varied  by  oral  testimony. 

7.  Contracts  to  quiet  opposition  not  fa- 

vored in  tliis  country. 
n.  1.  Some  English  and  American  deci- 
sions. 

8.  Regarded  as  vhra  vires. 

9.  May  be  enforced,  if  legislature  not  ex- 

posed to  be  misled. 


§  16.  1.  The  principle  of  the  foregoing  decisions,  upon  the  sub- 
ject of  specific  performance  of  contracts  with  the  promoters  of 
railway  projects  being  enforced  in  courts  of  equity  against  the 
company,  is,  to  say  the  least  of  it,  somewhat  obscure.  Regarded 
as  illegal  contracts,  it  does  not  seem  very  aj)])arcnt  how  they  can 
with  much  show  of  consistency  be  specifically  enforced  in  a  court 
of  equity.  Ordinarily,  such  contracts  are  not  the  subject  of  an 
action  for  their  enforcement,  in  any  court.  That  there  may  be 
extreme  cases,  where  one  has  gained  an  unconscionable  advan- 
tage by  enticing  a  *  less-experienced  person  into  participation  in 
an  illegal  transaction,  where  a  court  of  equity  will  compel  the 
successful  party  to  relinquish  the  fruits  of  the  fraud,  may  be  true. 

2  Steele  r.  North  Metropolitan  Railway  Co.,  Law  Rep.  2  Ch.  237. 
VOL.  I.  — 3  {*^^'\ 


34  PRELIMINARY   ASSOCIATIONS.  [PART   1. 

But  the  general  proposition  laid  down  by  Lord  Eldon  upon  this 
subject,  in  the  Vauxhall  Bridge  case,^  does  not  seem  to  gain  much 
support  from  the  case  cited  by  him.^ 

2.  It  seems  to  us  impossible  to  justify  such  contracts  beyond 
the  mere  sale  of  a  definite  pecuniary  interest.  And  even  that,  it 
would  seem,  should  be  secured  by  the  insertion  of  definite  provi- 
sions in  the  charter.  We  cannot  find  that  any  attempt  has  been 
made  in  this  country  to  enforce  against  a  corporation  a  contract 
made  with  the  promoters  to  quiet  opposition  in  the  legislature. 
That  it  is  often  charged  that  such  and  similar  contracts  are  made 
by  the  promoters  of  railway  projects  with  the  friends  of  rival 
projects,  and  other  opposers,  and  with  the  members  of  the  legis- 
lature even,  and  large  sums  of  money  disbursed  in  fulfilment  of 
such  contracts,  which  are  expected  to  be  refunded  by  the  com- 
pany, and  which  are  so  refunded  sometimes,  is  undeniable.  But, 
we  apprehend,  there  is  in  this  country  but  one  opinion  in  regard 
to  the  legality  and  decency  of  such  contracts,  and  that  those  who 
expect  to  profit  by  them  have  far  too  much  sagacity  to  trust  their 
redress  to  the  judicial  tribunals  of  the  country.  But  that  turn- 
pike and  bridge  companies,  and  existing  railways,  whose  profits 
are  to  be  seriously  affected  by  the  establishment  of  new  railways, 
and  land-owners,  whose  property  is  to  be  affected  by  such  rail- 
ways, may  properly  stipulate  for  reasonable  indemnity,  as  the 
price  of  withdrawing  opposition,  there  can  be,  we  apprehend,  no 
question.  But  it  seems  to  us  that  the  only  proper  mode  of 
securing  this  indemnity  is,  by  the  insertion  of  special  clauses  in 
the  charter  of  the  new  company.  There  can  be  no  question  in 
regard  to  the  duty  of  courts  of  equity,  in  a  proper  case  *  for  their 
interference,  to  enforce  an  indemnity  secured  by  the  act.^ 

^  Supra,  §  7;  Jacob,  64. 

2  Neville  v.  Wilkinson,  1  Bro.  C.  C.  543.  The  principle  of  this  case  is 
familiar.  It  holds,  that  one  who  has  represented  to  a  creditor  of  his  debtor,  or 
to  the  father  of  the  intended  wife  of  his  debtor,  that  his  debt  does  not  exceed 
a  specified  sum,  shall  not  be  allowed  to  enforce  a  debt  for  a  larger  sum,  the 
marriage  having  taken  place  in  confidence  of  such  representation.  In  this 
case  the  representation  was  made,  indeed,  by  connivance  between  the  husband 
and  his  creditor,  to  deceive  his  wife's  father.  But  so  far  as  the  creditor  is 
concerned,  the  decision  seems  to  rest  on  the  familiar  principle  of  an  estoppel 
in  pais.     Shirley  v.  Ferrers,  cited  in  St.  John  v.  St.  John,  11  Vesey,  536. 

8  Gray  v.  Liverpool  &  Bury  Railway  Co.,  9  Bear.  391;  s.  c.  4  Railw.  Cas. 
35 ;  supra,  §  11. 

[*46] 


§  10.]  CONTRACTS    AGAINST   SOUND    POLICY.  35 

3.  Wc  infer  from  the  late  decision  of  the  House  of  Lords  ujjon 
this  subject,  that  the  views  of  the  courts,  in  that  country,  arc 
already  undergoing  some  change  in  relation  to  it.  In  the  case 
of  Caledonian  and  Dumbartonshire  Junction  Railway  v.  Helens- 
burgh Harbor  Trustees,*  the  facts  were  tiuit  the  magistrates  of 
Helensburgh  agreed  with  the  provisional  committee  of  a  projected 
railway  company  to  allow  the  company  certain  privileges  of  taking 
land  in  the  town,  and  laying  rails  for  a  side  track  to  the  harbor 
of  H.,  the  company  to  pay  all  the  expenses  of  enlarging  the  har- 
bor, and  of  obtaining  an  act  of  parliament  for  that  purpose.  The 
Harbor  Act  was  obtained,  and  also  the  Railway  Act.  In  the 
latter  there  was  no  provision  authorizing,  or  referring  to,  the 
previous  agreement,  and  the  railway  company  refused  to  perform 
their  part,  and  did  not  claim  performance  of  the  other  part. 

4.  On  a  bill  for  specific  performance,  brought  by  the  harbor 
trustees,  held,  reversing  the  decision  of  the  Court  of  Session,  that 
specific  performance  could  not  be  decreed,  because  the  railway 
company  had  ho  power  to  make  a  harbor,  which  would  be  entirely 
beside  the  object  of  their  incorporation. 

5.  It  is  said  by  the  Lord  Chancellor,  and  by  Lord  Brougham, 
"  It  seems  that  Edwards  v.  Grand  Junction  Railway  Co.,  1  Railw. 
Cas.  173,  and  Lord  Petre  v.  Eastern  Counties  Railway  Co.,  Id. 
462,  and  other  similar  cases,  which  have  followed  them,  are  un- 
supported in  principle,  but  these  cases  are  distinguished  from  the 
present  by  the  nature  of  the  contracts  sought  to  be  enforced, 
which  were  matters  within  the  scope  of  the  respective  charters. 
Tiie  custom  sometimes  adopted  by  committees  in  parliament  of 
omitting  special  clauses  from  acts  of  incorporation,  on  the  agree- 
ment of  the  promoters  that  the  objects  proposed  to  be  attained  by 
these  clauses  should  be  carried  out,  appears  to  be  illegal,  and 
improper." 

6.  It  seems  very  obvious,  that,  if  these  clauses  can  bo  foisted 
into  the  act  of  incorporation,  by  oral  testimony,  at  the  will  of 
interested  parties,  it  is  exposing  the  operation  of  the  act  to  all  the 
inconveniences  and  inconsistencies  which  might  be  expected  to 
*  follow  from  subjecting  written  contracts  to  the  same  mode  of 
exposition.  Sound  views  and  true  policy  seem  to  us  to  require  a 
strict  adherence  to  the  act  of  the  legislature,  as  in  other  cases. 

*  Before  the  House  of  Lords  in  June,  1856;  s.  C  2  Macq.  Ap.  Caa.  391; 
8.  c.  39  Eng.  L.  &  Eq.  28. 

[•47] 


36  PRELIMINARY   ASSOCIATIONS.  [PART    I. 

7.  And  it  is  very  questionable,  whether,  in  this  country,  the 
contract  to  sell  a  definite  pecuniary  interest  —  as  land  which  is 
required  for  the  construction  of  the  road,  or  turnpike  and  canal 
property,  the  value  of  which  is  to  be  seriously  affected  by  the 
railway  going  into  operation  —  at  a  price  agreed,  made  with  the 
promoters  of  the  railway,  but  not  inserted  in  the  act,  and  which 
is  not  unreasonable,  can  be  enforced  against  the  company.  It  is 
certain,  we  think,  that  a  contract  going  altogether  beyond  this, 
and  stipulating  large  sums,  beyond  the  supposed  value  of  any 
pecuniary  interest  to  be  secured,  and  for  the  obvious  purpose  of 
quieting  opposition  or  securing  favor  and  support,  could  not  be 
enforced  here,  even  against  the  contracting  parties,  and  much 
less  against  the  company,  or  at  all  events  that  it  ought  not 
to  be.5 

^  In  the  more  recent  cases  little  countenance  is  given  to  the  doctrine  of  the 
earlier  English  cases,  which  held  the  contracts  of  the  promoters  of  railwaj-s 
binding  on  the  company,  on  the  slightest  grounds  of  adoption,  and  often  by 
the  most  forced  constructions.  In  Preston  v.  Liverpool,  INIanchester,  &c. 
Railway  Co.,  5  H.  L.  Cas.  605;  s.  c.  35  Eng.  L.  &  Eq.  92,  although  the  case 
is  professedly  decided  on  the  construction  of  the  particular  contract,  it  is  not 
difficult  to  perceive,  in  the  very  sensible  reasons  assigned  for  the  construction 
adopted,  a  manifest  disposition  to  abandon  tlie  former  ground  assumed  by 
the  courts.  See  Edinburgh,  Perth,  &  Dundee  Railway  Co.  v.  Philip,  2  Macq. 
Ap.  Cas.  514;  s.  c.  39  Eng.  L.  &  Eq.  41. 

In  Aldham  v.  Brown,  2  El.  &  El.  398,  the  extent  of  the  responsibility  of  a 
subscriber  to  the  preliminary  association  is  much  discu.jsed,  with  a  result 
which  may  be  briefly  stated  as  amounting  to  nothing  more  than  that  such 
subscriber  is  responsible  for  his  ratable  proportion  of  the  provisional  expenses, 
whether  the  scheme  is  finally  abandoned  or  not. 

In  Li  re  Aberystwith  Railway  Co.,  7  Jur.  n.  s.  510,  where  a  deposit  of 
eight  per  cent  on  the  estimated  cost  of  a  railway  was  paid  into  court,  in  com- 
pliance with  the  parliamentary  orders,  upon  filing  petitions  for  certain  rail- 
ways, it  was  held  that  the  proportion  of  such  deposit  would  be  paid  out  of 
court  to  the  party  duly  representing  the  petitioners,  on  any  of  the  railway 
projects  being  abandoned.  But  on  the  question  being  brought  to  the  attention 
of  the  Lords  Justices  (id.  564),  it  was  doubted  whether  the  statute  allowed 
the  money  to  be  repaid  merely  on  the  withdrawal  of  the  petition,  and  no  order 
was  made.  But  upon  principle  it  would  seem  that  there  could  be  no  differ- 
ence between  the  case  named  specifically  in  the  statute  for  repayment  of  the 
money,  that  of  withdrawal  of  the  petition,  and  such  as  denial  of  the  petition 
or  refusal  to  allow  the  party  to  proceed.  See  In  re  Dartmouth  &  Torbay 
Railway  Co.,  9  Weekly  Rep.  609.  It  is  no  objection  that  the  requisite  parlia- 
mentary deposit  is  made  from  borrowed  funds.  Scott  v.  Oakely,  10  Jur.  N.  8. 
431,  648.     And  a  court  of  equity  will  enforce  any  agreement  made  with  the 

[*47] 


§  16.]  CONTRACTS   AGAINST   SOUND    POLICY.  87 

*8.  In  an  English  casc,^  decided  in  tlie  Excliequor  C'liambor, 
reversing  the  decision  of  the  Court  of  Exchequer,  it  \v:is  lield, 
that  a  contract  by  the  coini)any  to  pay  £2,000  to  a  land-owner, 
*  who  op])Oscd  the  company  in  obtaining  parliamentary  powers 
for  extending  their  line,  for  the  injury  he  had  or  might  sustain 
in  respect  of  the  preservation  of  the  game  on  his  estate,  by 
reason  of  the  ])roi)Osed  extension,  was  ^iltra  vires  and  did  not 
bind  the  company,  the  covenant  being  absolute  and  not  de- 
pending on  the  building  of  the  railway,  and  the  funds  of  the 
company  being  both  by  the  original  and  the  new  act  ai)propriated 
to  specific  purposes  which  did  not  include  the  consideration  of 
this  contract. 

9.  There  is  an  American  case,'^  where  it  was  held,  that  an 
indemnity  secured  by  a  railway  company  to  an  individual,  to  quiet 

lender  to  compel  tlio  repayment  of  such  deposit.  lb.  But  an  agreement  by 
an  existing  railway  to  contribute  towards  the  deposit  required  to  promote  the 
grant  of  other  lines,  is  held  ultra  vires.  So  also  is  an  agreement  by  an  exist- 
ing railway  to  take  shares  in  the  projected  company,  or  to  establish  traffic 
regulations  with  reference  to  future  extensions.  But  such  an  agreement  will 
not  be  ultra  vires  where  its  validity  is  expressly  made  dependent  upon  the 
sanction  of  parliament.  Maunsell  v.  I\Iidland  Great  Western  Railway  Co., 
1  Ilemm.  &  M.  l;]0;  .^.  c.  9  Jur.  n.  s.  GOO.  See  Scottish  North  Eastern  Rail- 
way Co.  I'.  Stewart,  3  Macq.  Ap.  Cas.  382.  But  where  the  company  stipulates 
to  do  acts  ultra  vires,  there  is  no  implication  of  a  condition  that  the  company 
shall  have  or  shall  be^able  to  obtain  legislative  authority  to  do  them;  and  if  the 
acts  so  stipulated  to  be  done  are  component  parts  of  an  entire  agreement  em- 
bracing other  matters  within  the  powers  of  the  company,  an  injunction  will  be 
granted  against  carrying  any  portion  of  the  agreement  into  effect,  llaltersley 
V.  Shelburne,  7  Law  T.  N.  s.  650.  Where  six  different  lines  of  railway,  form- 
ing one  general  scheme,  were  promoted  by  the  same  persons,  but  subsequently 
four  of  them  were  abandoned,  and  an  act  obtained  authorizing  the  construction 
of  the  other  two,  by  which  it  was  provided  that  the  expenses,  costs,  and  charges 
of  obtaining  and  passing  the  act,  and  incidental  and  preparatory  thereto, 
.should  be  paid  by  the  incorporated  company,  it  was  held  that  the  costs  and 
expenses  coiuiected  with  the  abandoned  lines  were  proixjrly  rliargeable  on  the 
company.     In  re  Tilleard,  32  Beav.  476;  s.  c.  9  Jur.  n.  s.  1217. 

*  Taylor  v.  Chester  &  Midhiust  Railway  Co.,  Law  Rep.  2  Exch.  3."j6. 
WiLLKS  and  Blackburx,  JJ.,  dissenting.  This  judgment  was  reversed 
in  the  House  of  Lords,  and  judgment  rendered  for  the  jtlaintiff.  Law  Rep. 
4  H.  L.  G28.  But  the  doctrine  of  tlie  Exchequer  Chamber  is  more  in  con- 
formity with  the  Amorioan  cases  than  that  of  the  House  of  Lords.  Supra, 
§  12,  note  4. 

'  Low  V.  Connecticut  &  Passumpsic  Railway  Co.,  46  N.  H.  284;  s.  c.  45 
id.  370,  1  Redf.  Am.  Railw.  Cas.  1;  supra,  §  13,  note  2. 

[*48,  MO] 


38  PRELIMINARY   ASSOCIATIONS.  [PART  I. 

opposition  before  the  legislature,  for  the  mere  purpose  of  protect- 
ing a  private  interest,  and  tlie  party  is  thereby  induced  to  forego 
his  opposition,  —  that  the  indemnity  will  be  enforced,  unless  the 
case  presented  an  instance  where  the  legislature  was  thereby 
exposed  to  be  misled,  and  to  do  what  it  otherwise  would  not  have 
done. 

[*49] 


PART  II. 

THE  LAW   OF   CORPORATIONS. 


PAUT  II. 

THE   LAW   OF  CORPORATIONS. 


♦CHAPTER   III. 


RAILWAYS   AS   CORPORATIONS. 


SECTION     I. 


Origin  and  Different  Classes  of  Corporations. 


1.  Tlie  existence  of  corporations  is  of 

early  date. 

2.  The   different   kinds  of  corporations. 

Sole  and  aggregate. 

3.  Tliis  worli  treats  cliiefly  of  aggregate 

joint-stock  corporations. 

4.  Corporations  are  either  ecclesiastical 

or  lay. 
6.  So  they  are  divided  into  eleemosynary 
and  civil  corporations. 

6.  Corporations  are  public  or  private. 

7.  Private  corporations,  where  stock  is 

private  property. 


8.  Public  corporations,  where  stock  is 

owned  and  the  management  re- 
tained by  the  state. 

9.  It  does  not  affect  tlie  private  charac- 

ter of  a  corporation  that  tlie  state 
or  the  United  States  own  a  portion 
of  the  stock. 

10.  Distinction  between  corporations  and 

partnerships.     The  latter  dtfined. 

11.  Further  definition  of  the  distinction 

between  corporations  and  partner- 
ships. 


§  17.  1.  The  idea  of  corporate  action,  i.  c.  by  means  of  mere 
legal  entities,  or  creations  of  the  law,  seems  to  have  e.xistctl  from 
a  very  early  day  in  the  history  of  civilization.  They  seem  to  have 
been  allowed  by  the  laws  of  Solon,  and  by  those  of  the  Twelve 
Tables ;  and  may  very  probably  have  existed  at  a  still  earlier 
period.^ 

2.  There  have  existed  various  kinds  of  corporations,  distin- 
guished sometimes  by  the  form  of  the  association  or  the  nature  of 
the  organization,  and  sometimes  by  the  character  of  the  work  to 

^  1  Kent  Com.  524.  The  Eighth  Table  allowed  societies  or  private  com- 
panies to  make  their  own  by-law.s,  if  not  inconsistent  with  the  public  law. 


See  also  2  Kent  Com.  208,  note;  Dig.  Rom.  Civ.  Law,  47,  22,  4. 


[•50] 


42  RAILWAYS   AS   CORPORATIONS.  [PART  II. 

which  the  corporate  body  was  devoted.  Thus  corporations,  in  the 
English  law,  are  either  sole  or  aggregate.  By  the  former  is  under- 
stood corporations  existing  in  a  single  individual,  as  the  rector  of 
a  church,  or  the  judge  of  a  particular  court,  as  the  judge  of 
probate,  in  whose  name  securities  are  taken  and  to  be  prosecuted, 
or  any  other  official  name,  as  the  treasurer  of  a  town,  county,  &c., 
in  all  which  cases  the  single  individual,  maintaining  for  the  time 
the  particular  official  relation,  constitutes  the  quasi  corporation. 
Aggregate  corporations  are  where  the  body  consists  of  more  than 
*  one  member,  whether  such  members  are  shareholders,  as  in  the 
case  of  a  mere  business  corporation,  or  are  composed  of  different 
subdivisions  of  the  entire  corporation ;  as  the  mayor,  aldermen, 
and  common  council  of  a  city  or  other  municipality .^ 

3.  The  corporations  with  which  we  are  chiefly  concerned,  and 
which  will  be  mainly  considered  in  the  following  work,  are  aggre- 
gate business  corporations,  with  a  joint-stock  capital,  such  as 
banks,  railways,  manufacturing  and  other  similar  organizations. 

4.  But,  as  almost  all  kinds  of  corporations  have  in  some  sense 
analogous  powers  and  functions,  it  will  not  be  practicable  to  dis- 
cuss the  law  applicable  to  one  class  without  at  the  same  time,  to 
some  extent,  considering  the  law  applicable  to  all  other  classes  of 
corporations.  It  may  be  proper  therefore  to  mention  here,  that 
aggregate  corporations  may  be  ecclesiastical  or  lay,  i.  e.  their 
functions  may  have  reference  exclusively  to  religious  matters,  as 
a  parish  or  church,  whereby  they  are  appropriately  designated  as 
ecclesiastical  or  religious  bodies  ;  or  they  may  have  reference  only 
to  secular  matters,  whereby  they  are  more  appropriately  denomi- 
nated lay  corporations.  The  distinction  is,  however,  sometimes 
not  easily  determined,  since  the  business  and  functions  of  a  cor- 
poration may  approach  so  nearly  the  one  or  the  other  as  not  in- 
appropriately to  be  classed  among  either.  Thus  the  English 
Universities  of  Oxford  and  Cambridge  are  now  regarded  as  merely 
lay  or  civil  corporations,  although  at  one  time  they  were  with 
propriety  classed  among  ecclesiastical  corporations.^ 

*  5.  Corporations,  too,  are  divided  into  eleemosynary,  or  such  as 
disburse  only  charity  and  subsist  for  that  purpose  only, —  such  as 

^  Co.  Litt.  8  J,  250  a;  2  Kent  Com.  273,  274.  The  nature  of  sole  corpora- 
tions is  not  discussed  here,  as  very  few  exist  in  this  country,  and  those  by 
statutes  by  which  the  rules  of  succession  are  expressly  defined. 

•  Angell  &  Ames  Corp.,  §  40;  1  Bl.  Com.  471. 

[*61,  *52] 


§  17.]       ORIGIN    AND    DIFFERENT   CLASSES   OF   CORPORATIONS.  43 

schools,  colleges,  and  hospitals,  —  and  those  which  arc  of  a  busi- 
ness or  pecuniary  character,  called  civil  or  j)olitical  bodies,  intrusted 
with  certain  rights  or  duties,  and  rcfjuired  to  perform  certain 
functions,  more  or  less  connected  with  the  polity  of  the  state  or 
nation,  —  such  as  towns,  counties,  school  districts,  or  railways, 
banks,  and  manufacturing,  or  merely  business  corporations. 

6.  Corporations  are  either  public  or  private.  Public  corpora- 
tions embrace  all  the  municipal  subdivisions  of  the  state  ;  such  as 
counties,  towns,  and  cities,  and  school  districts,  and  other  similar 
organizations.  Private  corporations  include  all  aggregate  joint- 
stock  incorporated  companies,  whose  capital  stock  is  owned  by 
private  persons.  But  such  joint-stock  corporations  as  possess  no 
shares  not  owned  by  the  state  or  nation  are  also  regarded  as  public 
corporations,  the  same  as  the  municipalities  of  the  state.  The 
law  in  regard  to  railways  was  thus  stated  in  the  former  edition  of 
this  work. 

7.  Railways*  in  this  country,  although  common  carriers  of 
freight  and  passengers,  and  in  some  sense  regarded  as  i)ublic 
works,  are  ordinarily  private  corporations.^  By  private  corpora- 
tions nothing  more  is  implied,  than  that  the  stock  is  owned  by 
private  persons. 

8.  If  the  stock  is  owned  exclusively  by  the  state,  the  corpora- 
tion is  a  public  one.  And  such  public  corporations  arc  under  the 
control  of  the  legislature,  the  same  as  municipal  corporations,  and 
ordinarily  acquire  no  such  vested  rights  of  property  as  are  beyond 
the  control  of  legislative  authority.^  The  American  cases  going 
*  to  confirm  this  proposition,  and  to  show  that  railways  are  private 
corporations,  are  numerous.'^ 

*  The  charter  may  be  to  a  single  person  as  well  as  to  an  aggregation  of 
persons;  and  the  same  rights,  duties,  and  liabilities  result  from  the  grant,  in 
the  one  case  as  in  the  other. 

6  Supra  §  1,  pi.  G. 

«  Dartmouth  College  v.  Woodward,  4  Wheat.  518,  568;  2  Kent  Com.  (7th 
ed.)  275,  and  notes.  If  the  question  were  entirely  new,  it  might  be  regarded 
as  admitting  of  some  doubt,  perhaps,  how  far  the  American  states  could  with 
propriety  undertake  such  extensive  public  works,  whose  benefit  enures  almost 
exclusively  to  private  emolument  and  advantage.  But  the  practice  is  now 
pretty  firmly  established.  And  moreover  there  seems  to  be  no  proper  tribunal 
to  determine  such  questions  between  the  states  and  the  citizens. 

^  Donnaher  v.  Mississippi,  8  Sm.  &  M.  G19,  601.  By  the  court,  in  Water- 
loo Pre.sbyterian  Society 'r.  Auburn  &  Rochester  Railway  Co.,  3  Hill,  570; 
Dartmouth  College  v.  Woodward,  1  N.  II.  Ill,  116;  Eustis  v.  Parker,  1  N.  H. 

[*53] 


44  RAILWAYS    AS    CORPORATIONS.  [PART  II. 

*  9.  It  docs  not  alter  the  character  of  a  private  corporation, 
that  the  state  or  the  United  States  own  a  portion  of  the  stock.^  (a) 
*  But  a  turnpike  company  or  other  corporation,  managed  exclu- 
sively by  state  officers,  and  at  the  expense  and  for  the  benefit  of 
the  state  at  large,  is  a  public  corporation.^ 

10.  The  legal  distinction  between  a  corporation  and  a  copart- 
nership is  marked  and  important.  A  mere  partnership  is  the 
result  of  voluntary  association  between  two  or  more  persons,  to 
invest  their  capital  and  labor  in  the  joint  conduct  of  any  business, 
mercantile  or  otherwise,  either  for  a  definite  or  indefinite  time, 
according  to  the  terms  of  the  organic  contract.  This  contract  may 
be  in  writing  or  merely  oral,  and  requires  no  legislative  sanction 
to  give  it  validity.^''  The  result  of  such  an  association  is  to  create 
a  joint  interest  both  in  the  capital  and  the  business,  unless  there 
is  some  special  stipulation  as  to  the  property  remaining  in  those 
of  the  partners  who  furnish  the  capital.  The  several  partners  also 
become  responsible  for  all  the  debts  and  legitimate  contracts  of  the 
partnership ;  unless  in  special  and  limited  partnerships,  where, 
under  certain  conditions,  the  special  partners  are  not  liable  for 
the  partnership  contracts  beyond  the  amount  of  the  capital  invested 
by  thcm.^^ 

273;  Dearborn  v.  Boston,  Concord  &  Montreal  Railway  Co.,  4  Fost.  N.  II. 
179,  100;  Ohio,  &c.  Railroad  Co.  v.  Ridge,  5  Blackf.  78;  Bonaparte  v.  Camden 
&  Arnboy  Railroad  Co.,  1  Bald.  205,  222;  Bundle  v.  Delaware  &  Raritan  Canal 
Co.,  1  Wal.  Jr.  275;  Raleigh  &  Gaston  Railroad  Co.  v.  Davis,  2  Dev.  &  Bat. 
451;  Thorpe  v.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  140;  s.  c  1  Redf. 
Am.  Railw.  Cas.  587.  This  last  case  discusses  the  right  of  legishitive  control 
over  private  corporations  whose  functions  are  essentially  public,  like  those  of 
banks  and  railways. 

8  United  States  Bank  v.  Planters'  Bank,  9  Wheat.  904;  Miners'  Bank  v. 
United  States,  1  Greene,  Iowa,  553;  Turnpike  Co.  v.  Wallace,  8  Watts,  316; 
Bardstown  &  Louisville  Railroad  Co.  v.  Metcalfe,  4  Met.  Ky.  199. 

9  Sayre  v.  Nortli  Western  Turnpike  Co. ,  10  Leigh,  451.  But  see  Toledo 
Bank  v.  Bond,  1  Ohio  State,  C22,  657.  Opinion  of  Storiis,  J.,  in  Bradley  v. 
New  York  &  Xcw  Haven  Railway  Co.,  21  Conn.  294,  304,  305. 

"  Story  Part.  §§  2,  3,  and  cases  cited. 

"  Coope  V.  Eyre,  1  H.  Bl.  37,  48,  where  Lord  Chief  Justice  Lough- 
borough defines  a  partnership  to  be  a  .sharing  both  in  profit  and  loss,  and 
eays  tiiat  limited  partnerships  are  not  allowed  in  England,  although  upheld 
on  the  Continent.     But  the  law  is  now  otherwise  by  special  statute  both  in 

(a)  IMarshall  v.  Western  Railroad     pert,  22  W.  Va.  282.     See  infra,  §  176, 
Co.,  92  N.  C.  322;  Moore  v.  Schop-     note  1. 
[*54,  *55] 


§17^.] 


now  CORPORATIONS  ARE  CREATED. 


11 .  Bill  <1k'  orpcanization  of  a  corporation  is  essentially  difTorcnt. 
The  individual  members  or  corporators  arc  not  resjionsilde,  cxcefjt 
by  special  statute,  and  tliat  is  an  anomaly,  for  any  of  tbe  acts  of 
the  corporation.  The  corporators  are,  so  to  speak,  mer;_a'd  in  the 
abstract  being  created  by  the  act  of  incorporation,  and  can  do  no 
act  bindinuc  the  corporation  except  in  accordance  with  the  orf;:anic 
law  by  which  this  artificial  being  is  created.  And  the  corpoi-alion 
receives  its  powers  and  functions  solely  from  the  act  of  incorpora- 
tion;  and  this  act  must,  in  all  cases,  emanate,  either  directly  or 
indirectly,  from  the  legislative  power  of  the  state  or  nation,  and 
cannot  be  created  by  any  mere  contract  among  the  members,  as- 
in  the  case  of  copartnerships.  These  principles  are  so  elementary 
and  fundamental  to  the  very  existence  of  corporations  as  scarcely 
to  require  to  be  stated,  much  less  to  be  fortified  by  authoiity.^^ 


SECTION    II. 


IIoiv  Corjiorations  are  created. 


Corporations  created  by  grant  of  the 
sovereignty.  Tliis  may  he  proved, 
l)y  implication  or  by  presumption. 

Tlie  sovereignty  may  establisli  corpo- 
rations by  general  act,  or  delega- 
tion or  pro(;uration. 

Different  forms  of  defining  a  corpora- 
tion. 


4.  Tlie  corporate  action  of  corporations 

restricteil  to  stale  creating  tliiiii. 

5.  It  may  act  by  its  directors  ami  igents 

in  other  states. 
n.  10.    But  cannot  properly  transfer  its 
entire  business  to  anoilicr  state. 
0.    A  college  located  at  one  jilace  cannot 
establish  a  branch  at  another. 


§  17  a.  1.    Strictly  speaking,  corporations  can  only  be  created 
by  the  authority  of  the  sovereignty,  cither  state  or  national.'  («) 


EnG^land  and  in  America.  But,  independent  of  statute,  all  Uie  partners  are 
respon.sihio  for  all  the  liabilities  of  the  concern.  Angell  &  Ames  Corp.,  §  11 
et  sr/f.,  and  cases  cited. 

'"  Ant^ell  &  Ames  Corp.,  §  oOl  el  seq.  The  members  of  a  joint  stock  com- 
pany, however  numerous,  are  liable  as  partners,  unless  the  company  is  incor- 
porated.    "Williams  v.  Michigan  Bank,  7  Wend.  5:59,  5I'J. 

^  The  federal  sovereignty  being  limited  by  the  Constitution  to  jwwenj 
expressly  conferred  and  powers  necessary  to  their  exercise,  and  no  power  to 

(n)  Tt  is  a  power  which  belongs  to  the  Constitution.  Chenango  Bank  p. 
the  legislature  unless  taken  away  by     Biown,  20  N.  Y.  4G7. 

[*55] 


46  RAILWAYS   AS   CORPORATIONS.  [PART  II. 

Hence,  the  ordinary  mode  of  creating  joint-stock  business  cor- 
porations is  by  charter,  by  way  of  legislative  act  of  the  several 
states.  But  as,  in  some  cases,  the  record  of  such  charters  may 
not  hayc  been  preserved,  and,  in  other  cases,  the  grant  of  cor- 
porate powers  *  may  have  been  by  way  of  implication  rather  than 
express  legislative  act,  the  courts  have  allowed  corporations  to 
prove  their  corporate  character  and  capacity,  by  evidence  that 
such  character  and  capacity  is  reasonably,  or  necessarily,  implied 
from  other  legislative  action  ;  ^  or  else,  that  its  existence  is  fairly 
to  be  presumed  from  the  long  continuance  of  its  unquestioned 
exercise.^ 

2.  The  legislature  may  create  corporations  by  general  acts  of 
incorporation,  as  they  are  called,  whereby  a  given  number  of  per- 
sons, by  forming  an  association  in  a  prescribed  form,  shall  become 
possessed  of  corporate  powers,  for  certain  defined  objects  and 
purposes.  (6)  This  is  common,  in  many  of  the  states,  as  to  eccle- 
siastical and  charitable,  or  benevolent  associations,  and  not  unfre- 
quently  as  to  banking,  railway,  and  other  business  corporations. 
And  although  at  one  time  questioned,  it  seems  now  conceded 
that  the  sovereign  authority  may  grant  to  any  one  the  power  to 
erect  corporations  to  an  indefinite  extent,  upon  the  maxim :  Qui 
facit  per  aliumfacit  per  se.  This  power  is  given  to  the  Chancellor 
of  the  University  of  Oxford,*  and  exists  in  many  other  forms,  (c) 

3.  A  corporation  is  defined  by  Lord  Holt,  C.  J.,^  as  an  ens 
civile,  a  corpus  politicum,  a  persona  poUtica,  a  collegium,  an  univer- 

create  corporations  being  expressly  given,  the  Supreme  Court  held  at  an  early 
day  that  Congress  could  charter  such  corporations  only  as  might  fairly  be 
considered  necessary  to  the  exercise  of  its  various  powers  and  functions. 
McCulloch  1'.  Maryland,  4  Wheat.  316;  Osborn  v.  United  States  Bank, 
9  Wheat.  733. 

2  Conservators  of  the  Tone  v.  Ash,  10  B.  &  Cr.  349. 

8  Dillingham  v.  Snow,  5  Mass.  547;  2  Kent  Com.  277;  1  Bl.  Com.  473. 

*  1  Bl.  Com.  474.  6  Anonymous,  3  Salk.  102. 

(b)  The  constitutions  of  some  of  way  County  v.  Foster,  93  U.  S.  570; 

the  states   contain   restrictions   upon  Wallace  v.  Loomis,  97  U.  S.  146. 
the  exercise  of  this  power,  as  by  for-  (c)  But  this  nmst  be  taken  with 

bidding  the  granting  of  charters  by  the   qualification   that  the  power  to 

special   act.      See    San   Francisco   v.  make  laws  cannot  be  delegated.     See 

Spring  Valley  Water  AVorks,  48  Cal.  Coolcy  Const.  Lim.  116.     But  see  In 

493;  St.  Paul  Fire  Insurance  Co.  v.  re  Deveaux,  54  Ga.  673. 
Allis,  24  Minn.  75.     See  also  Calla- 

1*562 


§  17  a.]         HOW  CORPORATIONS  ARE  CREATED.  47 

8ita8,  a  jus  habendi  et  agendi.  A  corporation  is  well  defined,  as  to 
the  general  sense  of  the  term,  by  Chief  Justice  Marshall,^  as  "an 
artificial  being,  invisible,  intangible,  and  existing  only  in  contem- 
plation of  law."  It  is,  in  fact,  the  mere  creature  or  crcaticm  of 
the  law,  endowed  by  its  charter  with  the  capacity  of  performing 
certain  functions,  and  having  no  rights,  and  possessing  no  powers, 
except  those  conferred  by  the  sovereignty  by  which  it  was  created. 

4.  It  is  upon  this  ground,  that  it  has  been  declared,  upon  the 
most  unqucstional)lc  basis,  both  of  principle  and  authority,  that  a 
"  corporation  can  have  no  legal  existence  out  of  the  boundaries  of 
the  sovereignty  by  which  it  is  created."  "^  "  It  exists  only  in  con- 
templation *  of  law,  and  by  force  of  the  law ;  and  where  that  law 
ceases  to  operate,  and  is  no  longer  obligatory,  the  corporation  can 
have  no  existence.  It  must  dwell  in  the  place  of  its  creation,  and 
cannot  migrate  to  another  sovereignty."  And  the  same  thing, 
substantially,  is  repeated  in  another  case  ^  by  Mr.  Justice  Thomp- 
son, (d)  But  a  corporation  may  transact  business  in  a  foreign 
state  or  country,  and  may  be  there  sued  in  relation  to  the  same.* 

6.  There  seems  to  be  no  question  but  the  corporation  may  act, 
by  its  directors,  agents.,  and  servants,  beyond  the  limits  of  the 
sovereignty  by  which  it  was  created.'^  (<?)  But  its  first  meeting, 
and  all  its  subsequent  meetings,  in  order  to  bind  absent  and  dis- 

*  Dartmouth  College  r.  Woodward,  4  "Wheat.  518.  The  same  learned 
judge,  in  another  place,  Providence  Bank  v.  Billings,  4  Pet.  514,  thus  com- 
ments on  the  purposes  of  acts  of  incorporation:  "The  great  object  of  an 
incorporation  is,  to  bestow  the  character  and  properties  of  individuality  on  a 
collective  and  changing  body  of  men." 

'  Tanky,  C.  J.,  in  Bank  of  Augusta  v.  Earle,  13  Pet.  519,  588. 

*  Runyan  v.  Coster,  14  Pet.  122,  181.  And  to  the  same  point  see  "Miller  ». 
Ewer,  27  Me.  509;  Farnum  v.  Blackstone  Canal  Co.,  1  Sumner,  40;  Day  v. 
Newark  India  Rubber  Co.,  1  Blatchf.  C.  C.  628. 

»  Ncwhy  V.  Colt's  Patent  Fire-Arms  Co.,  Law  Rep.  7  Q.  B.  203. 

'^  McCall  V.  Byram  j\Iaiiuf.  Co.,  G  Conn.  428.  It  was  held  in  this  case, 
that  the  directors  of  a  manufacturing  corporation  might  legally  hold  a  meet- 
ing, out  of  the  state,  for  the  purpose  of  making  the  appointment  of  secretary 
of  the  corporation,  and  that  the  appointment  would  not  be  rendered  invalid 
by  permanent  residence  of  the  appointee  without  the  state. 

{(I)  And  to  the  same  effect  Fikld,  Christian  "Union  v.  Yount,  101  U.  S. 

J.,  in  Paul  v.  Virginia,  8  Wal.  181.  356.     And   see    United    States  v.  In- 

(^)  But  this  only  by  comity,  and  surance  Co.,  22  Wal.  99;  Leazure  r. 

subject   to  legislative  control  in  the  Union  Mutual  Life  Insurance  Co.,  91 

state  in  which  they  assume   to  act.  Penu.  St.  491. 

[-57] 


48  RAILWAYS    AS   CORPORATIONS.  [PART   II. 

senting  members,  should,  it  would  seem,  be  held  within  the  limits 
and  jurisdiction  of  the  sovereignty  creating  the  corporation.^^  But 
in  one  case  in  New  Jersey ,^2  the  general  rule  is  reaffirmed,  that  a 
corporation  can  hold  no  meeting  and  transact  no  corporate  busi- 
ness, except  witliin  the  state  from  wliich  *  tliey  derive  their 
charter.  And  it  was  here  further  held,  that  a  resolution  of  the 
directors,  at  a  meeting  held  out  of  the  state  where  the  corpora- 
tion was  created,  for  the  purpose  of  transferring  stocli  to  some 
of  their  own  number,  was  wholly  inoperative.  But  the  court  de- 
clined to  enjoin  those  holding  under  such  title  from  voting  at  the 
election  of  corporate  officers,  until  all  parties  could  be  heard  upon 
the  question  of  title. 

6.  But  a  college  of  learnmg,  established  in  a  particular  place, 
has  no  power  to  establish  a  branch,  for  one  of  its  departments  or 
faculties,  at  a  different  place.  It  was  accordingly  held,  that 
Geneva  College,  at  Geneva,  N.  Y.,  could  not  establish  a  medical 
school  in  the  city  of  New  York.^^ 

"  Miller  v.  Ewer,  27  Me.  509.  It  is  so  well  settled,  that  corporations, 
created  by  one  sovereignty,  cannot  transfer  their  locality  so  as  legally  to  exist 
and  act  in  their  organic  corporate  capacity  in  another  sovereignty,  that  it 
appears  very  singular  that  so  many  speculative  joint-stock  corporations,  deriv- 
ing their  charters  from  the  legislature  of  the  state,  should  attempt  to  transfer 
their  entire  local  action  to  another  sovereignty  and  jurisdiction.  There  is  no 
principle  better  settled  than  that  the  locality  of  a  business  corporation  is 
determined  by  that  of  its  principal  business  office;  and  yet  there  are  many 
business  corporations  chartered  by  the  legislature  of  one  state  having  their 
principal  and  only  business  offices  in  other  states.  This  is  done  doubtless  by 
holding  the  stockholders'  meetings  in  the  states  where  the  charter  was  ob- 
tained, and  appointing  a  board  of  directors  with  full  powers,  and  then  carry- 
ing forward  the  business  of  the  company  through  the  agency  of  the  board  of 
directors,  with  a  by-law  for  filling  vacancies  in  the  board  by  the  action  of  the 
directors  themselves.  But  that  seems  scarcely  less  than  an  evasion;  and 
though  such  action  may  be  binding  on  the  members  of  the  company  so  long 
as  they  acquiesce,  it  might  at  any  time  be  enjoined  by  proper  proceedings  in 
equity. 

1^  ililles  V.  Parrish,  1  McCart.  N.  J.  380. 

^3  People  I'.  Geneva  College,  5  Wend.  211. 

[*o8J 


§  n  b.] 


CONSTITUTIONS   OF   CORPORATIONS. 


4'J 


SECTION   ITT. 


Constitutions  of  Corporations,  and  mode  of  Proof. 


1.  Definitions  of  tlio  different  senses  of 

tlie  term  "constitution,"  as  applied 
tt)  corporations. 

2.  How  corporations  may  be  composed 

or  constituted. 
n.  1.    The   question    illustrated   more 
in  detail. 

3.  Distinction  between   legislative,  elec- 

toral, and  administrative  assemblies 
not  essential. 

4.  Corporation  can  act  only  by  its  name. 

Subject  discussed. 

6.  Any  deviation  from  the  name  allowed, 
if  the  substance  and  sense  be  pre- 
served. 

6.  (-ourts  of  equity  will  not  restrain  cor- 
porations from  applying  for  en- 
larged powers. 


7.  Change    of   constitution.     Kffect   of 

change  of  name. 

8.  Courts  of  equity  will  enjoin  a  new 

corporation  from  assuming  the 
name  of  one  of  established  credit. 
0.  Promissory  note  payable  to  A.  15., 
treasurer  of  a  corporation,  may  bo 
sued  in  the  name  of  A.  IJ.  IVomis- 
sory  note  for  subscription  waives 
condition. 

10.  Corporation  may  be  estopped  to  deny 

its  existence.     How  described. 

11.  How  the  existence  and  non-existence 

of  corporations  ma\'  be  proved. 

12.  Party  to  written  contract,  payable  to 

corporation,  cannot  deny  corporate 
existence. 

13.  Proof  of  corporation  in  fact  sufficient 

in  all  cases. 


§  17  J.  1.  The  term  "  constitution,"  as  applied  to  corporations, 
is  susceptible  of  being  used  in  very  difTerent  senses.  It  may 
imjily  notbing  more  than  the  cbartcr  or  formal  grant  of  corporate 
organization  and  powers  by  the  sovereignty,  or  it  may  be  aj)pli(^d 
to  certain  fundamental  princijdes,  declared  by  the  corjiorators 
themselves  as  the  unalterable  basis  of  tbe  organization  of  tlic 
body;  or,  if  not  wbolly  uiudterable,  not  to  be  altered  exc(']tt  by 
tbe  *  adoption  and  concurrence  of  certain  formalities,  not  likely 
to  occur,  except  in  regard  to  changes  of  very  obvious  necessity  ; 
or  the  term  may  be  used  to  signify  the  constituent  members,  or 
different  bodies  of  which  the  corporation  is  composed. 

2.  A  corporation  may  be  composed  of  natural  persons,  acting  in 
their  separate  and  individual  cajjacity  ;  or  it  may  be  composed  of 
different  bodies  of  natural  persons,  acting  in  separate  as.semblies; 
or  it  may  be  composed  of  separate  and  distinct  corjiorations.^ 

^  In  general,    joint-stock   business  corporation.s  are  composed   of   natural 

persons,  but  as  membership  is  a  result  of  ownership  of  .shares,  it  may  exist 

in  other  corporations  or  in  the  state  or  government.     Uniteil  Stat"s  Hank  r. 

rianters'  Bank,  9  Wheat.  904;  South  Carolina  liank  r.   (iibbs,  '^  McCord, 

VOL.  I.  — 4  [*5^J 


50  RAILWAYS    AS   CORPORATIONS.  [PART   II. 

3.  Some  writers  have  distino^uished  the  meetings  or  assemblies 
of  aggregate  corporations  into  three  kinds,  —  legislative,  electoral, 
and  administrative.  But  this  is  a  distinction  with  reference  to 
the  different  offices  or  duties  of  the  same  assembly,  or  meeting, 
and  is  consequently  of  no  practical  importance  to  be  maintained 
or  discussed.2 

4.  A  corporation  must  be  constituted  by  some  corporate  name, 
and  can  only  act  by  such  name.^  A  corporation  by  prescription 
may  have  several  names,  but  by  charter  it  can  have,  it  is  said, 
but  one  name  for  the  same  purpose  and  at  the  same  time.  For, 
*  although  it  may  have  a  new  charter  by  a  new  name,  it  thereby 
loses  the  old  name.* 

5.  But  it  sometimes  becomes  an  important  and  difficult  con- 
sideration, how  far  a  departure  from  the  strict  corporate  name 
can  be  allowed  without  tbe  violation  or  disregard  of  established 
principles.  It  was  early  decided  ^  that  in  contracts  by  or  to  cor- 
porations, it  is  sufficient  if  the  name  be  substantially  preserved. 
It  is  not  requisite  ut  idem  nomen  syllabis  be  preserved,  but  only 

377.  A  state,  however,  "  as  a  member  of  a  corporation,"  as  said  by  Marshall, 
C.  J.,  in  the  former  case,  ''never  exercises  its  sovereignty.  It  acts  merely  as 
a  corporator,  and  exercises  no  other  power  in  the  management  of  the  affairs 
of  the  corporation  than  are  expressly  given  by  the  incorporating  act." 

So  it  may  exist  in  different  associations  of  natural  persons,  or  in  a  defined 
number  of  persons  of  a  particular  class.  1  Kyd,  o6;  7  S.  &  R.  .517.  Of  cor- 
porations composed  of  several  subordinate  corporations  the  Dean  and  Canons 
of  the  English  cathedrals,  and  the  English  Universities  composed  of  different 
colleges  and  halls  are  examples.  2  Burn  Ec.  Law,  tit.  Monasteries,  542; 
Angell  &  Ames  Corp.  §  06. 

2  1  Kyd,  399;  Aiigell  &  Ames  Corp.  §  98. 

8  Physicians'  College  i-.  Salmon,  3  Salk.  102. 

*  Anonymous,  3  Salk.  102.  But  some  writers  have  said  that  if  the  charter 
of  a  corporation  allow  it  to  act  by  different  names  for  the  same  purpose, 
there  is  no  good  reason  why  it  may  not.  1  Kyd,  230.  And  in  Minot  v. 
Curtis,  7  Mass.  441,  it  is  said  a  parish  may  be  known  by  several  corporate 
names.  The  point  is  not  important,  since  few  corporations  make  any  claim  to 
an  alias  dlctns;  and  where  that  is  claimed  there  will  commonly  be  no  difficulty 
in  determining  how  far  the  claim  can  be  justified  or  maintained.  There  is 
no  pretence  that  a  corporation  may  change  its  name  at  will.  Serious  incon- 
venience might  be  expected  to  result  from  a  concession  of  any  such  power. 
Reg.  V.  Registrar,  10  Q.  B.  839.  But  the  legislature  may  change  the  name 
of  a  corporation,  and  this  will  not  affect  its  rights,  its  identity  being  shown. 
Rosenthal  r.  Madison,  Indianapolis  Plank-Road  Co.,  10  hid.  358. 

6  Lynne  Regis,  10  Co.  122. 
[*60] 


§  17  b.]  CONSTITUTIONS   OF   CORPORATIONS.  51 

in  re  et  seni^ii.  The  precise  words  of  the  same  arc  not  indispensa- 
ble. It  is  sufficient  if  the  substance  and  the  sense  be  preserved. 
And  in  a  case  in  New  Hampshire,  it  was  lield  not  essential,  in 
naming  a  corporation,  that  the  same  words  should  be  used  in  the 
same  order,  provided  the  description  was  sunicicnt  to  identify  the 
body.^  And  this  rule  obtains  generally,  in  all  the  cases  upon  the 
subject,  both  Entrlish  and  American.  If  the  name  used  to  de- 
scribe the  corporation  docs  not  describe  any  other  person,  natural 
or  corporate,  and  is  sufficient  to  show  that  the  particular  corpora- 
tion was  intended,  it  will  be  sufficient,"  (a) 

6.  The  constitutions  and  powers  of  all  corporations  must  neces- 
sarily depend  upon  the  law  of  the  state  where  the  same  was  cre- 
ated. And  in  the  English  courts  of  equity  it  is  not  the  practice 
to  interfere  to  restrain  the  majority  of  the  shareholders  from  ap- 
plying to  parliament  for  enlarged  powers.  And  the  same  rule  is 
there  adopted  as  to  foreign  corporations,  whose  shareholders  prin- 
cipally *  reside  in  England,  and  where  the  principal  business  is 
transacted  in  that  country.^ 

7.  The  English  courts  of  equity  hold  a  very  strict  hand  over 
joint-stock  companies  incorporated  by  act  of  parliament,  both  in 
regard  to  the  exercise  of  their  powers  and  the  application  of  their 
funds.9  Where  the  name  of  a  corporation  is  altered  by  act  of  the 
legislature,  with  a  provision  that  it  shall  not  have  the  effect  to 
jircjudice  any  right  or  remedy  in  favor  of  the  company  previously 
existing,  it  was  held  to  save  the  remedy  against  a  surety  upon  a 
bond  for  faithful  service  of  an  employi^.^'' 

8.  An  apfAication  was  made  in  a  somewhat  recent  case,^^  for  an 
injunction  against  the  defendant's  adoption  and  use  of  the  plain- 

*  Newport  Mechanics  Co.  v.  Starbird,  10  N.  II.  12.3. 

T  Sutton  First  Parish  v.  Cole,  3  Pick.  232;  Tucker  r.  Seamen's  Aid  Society,? 
Met.  188;  Attorney-General  v.  Rye,  7  Taunt.  54G;  Fester  v.  Walter,  Cro.  Eliz. 
lOG;  Domestic  &  Foreign  ^lissionary  Society's  Appeal,  30  Penn.  St.  425;  Hutton 
V.  American  Tract  Society,  23  Vt.  33G;  Red'f.  Wills,  Pt.  1,  §  10.  and  cases  ci(.-d. 

8  Pill  V.  Sierra  Nevada  Lake  Water  Co.,  1  l)e  G.  F.  &  J.  177;  s.  c.  0  .lur. 
N.  s.   181. 

»  Attorney-General  v.  Great  Xorthern  Railway  Co.,  1  Drewry  &  S.  151. 

"  Groux  Improved  Soap  Co.  v.  Cooper,  8  C.  B.  n.  s.  800. 

^*  London  Insurance  r.  London  &  Westminster  Insurance  Co.,  9  Jur.  n.  s.  813. 

(a)  There  would  seem  to  be  no  rea-  hast     See  Clement  v.  Lotlirop,  18  Fed. 

son  why  the  misnomer  of  a  corporation  Rep.  88.'),  and  cases  paxsim,  in  which 

should  have  any  legal  effect  other  tlian  this  seems  to  be  assumed, 
such  as  the  misnomer  of  an  individual 

[•61] 


52  RAILWAYS  AS  CORPORATIONS.  [PART  IT. 

tiff's  name,  or  one  so  similar  as  to  lead  the  public  to  suppose  they 
were  the  same  institution,  upon  the  ground  that  this  would  tend 
to  deprive  them  of  the  just  benefits  of  the  long  period  of  conduct- 
ing their  business  upon  terms  and  in  a  mode  most  acceptable  to 
the  public.  The  application  was  based  upon  the  same  grounds 
that  have  induced  courts  of  equity  to  interfere  to  protect  parties 
from  the  fraudulent  use  of  established  trade-marks,  inasmuch  as 
it  tends  to  a  double  fraud,  —  in  depriving  the  parties  first  giving 
character  to  such  mark  of  the  legitimate  fruits  of  their  industry  ; 
and  also  in  that  it  induces  the  public  to  suppose  they  arc  obtain- 
ing the  original  article  of  the  original  proprietor,  when  in  fact  they 
arc  not,^-  The  court,  Vice-Chancellor  Stuart,  intimated  no  doubt 
of  the  propriety  of  granting  the  relief,  upon  the  ground  claimed 
in  the  bill,  but  denied  the  injunction  upon  the  ground  that  no  such 
case  was  made  out  at  the  hearing.  But  a  company  cannot  by  user 
acquire  an  exclusive  right  to  use,  in  its  title  of  incorporation,  a 
term  descriptive  merely  of  the  locality  where  the  business  is  car- 
ried on ;  and  the  court  will  not  restrain  the  use  of  such  general 
term  by  a  new  company,  although  it  appear  that  the  former  com- 
pany may  have  been  prejudiced  by  the  similarity  of  name.^^ 

*  9.  A  promissory  note  payable  to  a  person  by  name,  adding 
treasurer,  &c.,  naming  a  railway  corporation,  must  be  regarded 
as  payable  to  the  person  named  and  not  to  the  corporation.^*  But 
such  a  note,  given  for  a  conditional  subscription  of  stock,  must 
be  regarded  as  a  waiver  of  the  condition,  and,  if  executed  some 
time  after  the  date  of  the  subscription,  cannot  be  construed  as  part 
of  the  contract  of  subscription.^^ 

10.  A  corporation,  after  having  claimed  and  exercised  corporate 
powers  for  a  considerable  time,  will  be  estopj)ed  from  denying  its 
corporate  existence. ^*^  (?>)     It  is  said  in  some  cases,  that  if  the  cor- 

12  2  Story  Eq.  Jur.  §  951  et  seq.,  ed.  18G6. 

"  Colonial  Life  Assurance  Co.  v.  Home  &  Colonial  Life  Assurance  Co., 
33  Beav.  548;  s.  c.  10  Jur.  n.  s.  9G7. 

"  Chadsey  v.  McCreery,  27  111.  253. 

15  O'Douald  V.  Evansville,  Indianapolis,  &  Cleveland  Railroad  Co.,  14  Ind. 
259. 

15  Callender  r.  Painesville  &  Hudson  Railroad  Co.,  11  Ohio  St.  516;  Atlan- 
tic &  Ohio  Railroad  Co.  v.  Sullivant,  5  Ohio  St.  276.  See  also  Ashtabula  & 
New  Libson  Railroad  Co.  v.  Smith*,  15  Ohio  St.  328. 


(b)  See  Real  Estate  Savings  Institution  v.  Fisher,  9  Mo.  Ap.  593. 
[*62] 


§  Ml).]  CONSTITUTIONS   OF   CORPORATIONS.  53 

poratioii  contracts  by  a  style  which  is  usual  in  crcatinj^  corpora- 
tions, and  which  discloses  the  names  of  no  natural  jiorsons,  that 
the  corporate  existence  will  be  implied  and  need  not  be  iivcntd.'" 
But  in  general  such  a  proposition  would  not  be  regarded  as  main- 
tainable in  suits  either  in  favor  or  against  a  corporation  ;  it 
should  be  described  as  such  in  the  declaration,  with  its  location 
at  its  central  place  of  doing  business. 

11.  It  has  been  held,  that  where  defendants,  sued  as  a  corpora- 
tion, rely  ujion  the  fact  that  the  corporate  existence  has  ceased 
before  the  institution  of  the  suit,  it  must  ])e  j)lcaded  in  abatement 
and  not  in  bar  of  the  action.  But  in  general  the  want  of  corpo- 
rate existence  and  power  may  be  shown  at  any  time  before  judg- 
ment, upon  proper  notice  and  special  plca.^^  A  party  who  has 
sued  a  corporation  and  recovered  judgment  against  them  by  a 
particular  name,  is  afterwards  estojjped  from  denying  the  coi'po- 
ratc  existence. ^^  But  this  seems  not  altogether  in  accordance 
with  the  requirement  that  estoj)pcls  be  mutual,  unless  the  judg- 
ment were  between  the  same  parties.  Such  an  estopj^el  would 
therefore  only  operate  as  between  the  jjlaintilT  in  the  former  suit 
and  the  corporation.  (<^) 

12.  The  cases  are  very  numerous  where  it  has  been  held  that  a 
*  party  who  gives  a  written  contract  to  a  corporation  by  a  partic- 
ular name  is  estopped  to  deny  the  existence  and  name  of  such 
corporation.^^ 

13.  And  in  all  cases  of  the  plea  of  nnl  tivl  corporation,  proof  of 
a  corporation  in  fact  will  be  sullicient.-*^ 

"  Stein  V.  Indianapolis  Building  Association,  18  Ind.  237. 
"  RIcikcl  V.  deiinan  Savings  Fund  Society,  &c.,  IG  Ind.  181. 
13  rochfhi  V.  KiMupcr,  14  La.  An.  308. 
20  Hubbard  v.  Chappel,  14  Ind.  GUI. 

(r)  Upon  til  is  question  of  estoppel  Savings  Institution  v.  Burnham,  128 

on  one  who  has  dealt  with  a  de  facto  Mass.  4.)8,  wiiere   it   is   lu'ld   tliat    a 

corporation,  see  Sayers  v.   First  Na-  recital  in  a  deed  that  one  of  the  par- 

tional  Hank,  89  Ind.  230;  Stanley  v.  ties  is  a  corporation  is  ;)nma /m-jV  cvi- 

Richmond    Railroad    Co.,   89    N.    C.  dence  that  it  is  so.     And  see  German 

331;  Real  Estate  Savings  Institution  Rank  v.   Stunipf,  9  Mo.   Ap.  593,  to 

V.  Fisher,  9  Mo.  Ap,  093;  Brown  r.  the  same  point.     But  quftrc  whether 

Scottish  American  Mortgage  Co.,  110  the  courts  proceed  in  these  cases  on 

111.  235;  Ryan  r.  Martin,  91   N.    C.  the  doctrine  of  estoppel,  — whether  the 

464;  Johnston  Harvester  Co.  r.  Clark,  rule  is  more  than  a  rule  of  evidence. 
30   Minn.   308.      See   also   Provident 

[*63] 


54 


PROCEEDINGS    UNDER   THE   CHARTER. 


[part   II. 


♦CHAPTER    IV. 

PROCEEDINGS   UNDER   THE   CHARTEB. 


SECTION     I. 


Organization  of  the  Company. 


1.  Conditions    precedent  must    be    per- 

formed. 
n.  (b).    Semble,  however,  that  there  is 
a  distinction  between  conditions. 

2.  Stock,   in  general,  must  all   be  sub- 

scribed. 

3.  Charter-location    of    road,    condition 

precedent. 

4.  Colorable  subscriptions  binding  at  law. 

5.  Conditions  subsequent,  how  enforced. 

6.  Stock  distributed  according  to  charter. 

7.  Commissioners  must  all  act. 


8.  Defect     of    organization     must    be 

specially  pleaded. 

9.  Question  cannot  be  raised  collater- 

ally. 
71.  (e)    Semble  that  there  is  a  distinc- 
tion between  cases. 

10.  Records  of  company,  evidence. 

11.  JMembership,    what   constitutes,    and 

liow  maintained. 

12.  Subscription  and  transfer  of  shares 

generally  necessary. 

13.  Offers  to  take  shares  not  enforced  in 

equity,  and  may  be  witlidrawn. 


§  18.  1.  To  give  the  corporation  organic  life,  the  mode  pointed 
out  in  the  charter  must  ordinarily  be  strictly  pursued.  Condi- 
tions precedent  must  be  fairly  complied  with.^  (a)  Thus,  where  a 
given  amount  of  capital  stock  is  required  to  be  subscribed  or  paid 
in  before  the  corporation  goes  into  operation,  this  is  to  be  re- 
garded as  an  indispensable  condition  precedent.^  But  if  the 
charter  is  in  the  alternative,  so  that  the  stock  shall  not  be  less 
than  one  sum  or  greater  than  another,  the  company  may  go  into 
operation  with  the  less  amount  of  stock,  and  subsequently  increase 
it  to  the  larger.^  (6) 

1  Angell  &  Ames  Corp.  §§  9.')-112;  2  Kent  Com.  293  ef  seq. 

2  Infid,  §  51,  and  cases  cited.  Bend  v.  Susquehanna  Biidge.  6  Har.  &  J.  128; 
Gray  v.  Portland  Bank,  3  Mass.  3Ul;  Minor  v.  Mechanics'  Bank,  1  Pet.  4G, 
per  Story,  J.  And  where  a  corporation  is  formed,  or  attempted  to  be  formed, 
under  general  statutes,  the  inchoate  proceedings  do  not  ripen  into  a  corpora- 

(a)  But  see  Walworth  v.  Brackett,  said  that  charters  should  not  receive 

98  Ma.s3.  98;  People  r.  Stockton  Rail-  a  technical   construction,  and  that  a 

road    Co.,   45    Cal.    306;    People    v.  substantial  performance  is  sufficient. 
Cheesenian,  7  Col.  370,  where   it   is         {h)  Unless  otherwise  provided,  the 
[•64] 


§  18.]  ORGANIZATION   OF   THE   COMPANY.  65 

*  2.  And  wlicrc  business  corporations  arc  created  with  a  dofi- 
nite  capital,  it  is  regarded  as  equivalent  to  an  express  condition 
that  the  whole  stock  shall  be  subscribed  before  the  company  can 
iro  into  full  ojjeration  ;  (c)  and  in  the  case  of  banks,  it  must  be 
paid  in  specie,  in  the  absence  of  all  provision  to  the  contrary, 
before  they  can  jiroperly  go  into  operation.^ 

tioii  until  all  the  requirements  of  the  statute,  even  the  filing  of  the  articles  in 
the  office  of  the  Secretary  of  State,  are  complied  with.  Until  this  is  done,  the 
subscription  of  any  one  to  the  articles  is  a  mere  proposition  to  take  the  number 
of  shares  specified,  of  the  capital  stock  of  the  company  tliereafter  to  be  formed, 
and  not  a  binding  promise  to  pay.  The  obligation  is  merely  inchoate,  and 
can  never  become  of  any  force  unless  the  corporation  goes  into  effect  in  tho 
luode  pointed  out  in  the  statute.     Burt  v.  Farrar,  L'l  Barb.  518. 

8  King  V.  Elliott,  G  Sm.  &  M.  428;  infra,  §  51.  But  a  requirement  in  the 
charter  of  a  railway  company,  that  so  much  per  mile  shall  be  subscribed,  and 
ten  per  cent  paid  thereon  in  good  faith,  does  not  require  ten  per  cent  to  be 
paid  by  each  subscriber.  It  suffices  that  such  proportion  on  the  whole  sub- 
scription is  paid.  Ogdensburg,  Home,  &  Clay.  Railroad  Co.  r.  Frost,  21 
Barb.  541.  Under  the  late  English  statutes,  corporations  are  allowed  to  or- 
ganize, and  make  calls  to  some  extent,  before  all  the  capital  is  subscribed. 
Ornamental  Pyrographic  Woodwork  Co.  v.  Brown,  9  Jur.  n.  s.  578;  s.  c.  2  H. 
&  C.  G3.  But  in  America,  the  rule  that  all  the  stock  must  be  subscribed  be- 
fore the  company  can  go  into  operation  is  strenuously  adhered  to.  Shurtz  v. 
Schoolcraft  &  Three  Kivers  Railroad  Co.,  9  Mich.  2G9.  And  on  general  prin- 
ciples it  seems  not  to  be  held  indispensable  in  England  that  all  the  stock  be 
subscribed,  either  to  enable  the  corporation  to  go  into  operation  or  even  to 
borrow  money  on  mortgage.  McDougall  i;.  Jersey  Lnperial  Hotel  Co.,  2 
Heinm.  &  M.  528;  s.  c.  10  Jur.  n.  s.  1U13.  But  in  America,  the  entire  capi- 
tal stock  must  be  subscribed  and  paid  in  money,  and  it  will  not  be  sulhcient 
to  pay  it  in  the  equivalent  for  money,  to  the  acceptance  of  the  shareholders  or 
directors,  unless  the  charter  or  general  laws  of  the  state  so  provide.  I'eople  v. 
Troy  House  Co.,  44  Barb.  G25. 

incorporation  takes  effect  on  accept-  Each  subscription  for  stock,  nothing 
auce  of  the  charter.  It  would  seem  being  stipulated  to  the  contrary,  is 
that  tliere  is  a  distinction  between  a  impliedly  CDuditioncd  uiK)n  the  raising 
condition  attached  to  the  formation  of  of  the  full  amount.  Skowhegan  & 
the  corporation,  and  a  condition  at-  Athens  Railroad  Co.  v.  Kinsman,  22 
tached  to  the  carrying  on  of  business  Am.  &  Eng.  Railw.  Cas.  13. 
after  such  formation.  See  People  v.  (r)  The  charter  may,  however,  pro- 
Chambers,  42  Cal.  201 ;  Hammond  v.  vide  otherwise  of  course.  Boston,  &c., 
Straus,  53  INId.  1 ;  Perkins  r.  Sanders,  Railroad  Co.  v.  Pearson,  128  Mass. 
5G  Miss.  733.  And  see  Boston,  Barre,  445;  Boston,  Barre.  &  Cardiner  Rail- 
&  Gardiner  Railroad  Co.  v.  Welling-  road  Co.  v.  Wellington,  113  Mass.  79, 
ton,  113  Mass.  79;  Boston,  &c.  Rail-  aud  csxses  passim. 
road  Co.  v.  Pearson,  128  Mass.  445. 

[♦65] 


56  PROCEEDINGS   UNDER   THE    CHARTER.  [PART   II. 

3.  In  some  cases  it  is  a  condition  of  the  charter,  or  of  the  sub- 
scriptions to  tlie  stock,  that  the  track  of  a  railway  shall  touch 
certain  points,  or  that  it  shall  not  approach  witliin  certain  dis- 
tances of  other  lines  of  travel.  This  class  of  conditions,  so  far 
as  they  can  practically  be  denominated  conditions  precedent, 
must  be  strictly  complied  with,  before  the  company  can  properly 
go  into  operation  so  as  to  make  calls. 

4.  But  it  has  been  held,  that  colorable  subscriptions  to  stock, 
in  order  to  comply  with  the  requisites  of  the  charter,  are  not  to 
be  regarded  as  absolutely  void.  They  are  binding  upon  the  sub- 
scribers themselves.  And  they  are  binding  upon  the  other  sub- 
scribers, unless  upon  their  first  discovery  they  take  steps  to  stay 
the  further  j)roceedings  of  the  corporation,  which  may  be  done  in 
a  court  of  equity.  If  there  has  been  unreasonable  delay  in  oppos- 
ing the  action  of  the  corporators,  upon  the  faith  of  such  subscrip- 
tions, or  if  matters  have  progressed  so  far  before  the  discovery  of 
the  true  character  of  the  subscriptions,  by  the  parties  liable  to  be 
injuriously  *  affected  by  them,  as  to  render  it  difficult  to  restore  the 
parties  to  their  former  rights,  the  corporation  will  still  be  allowed 
to  proceed,  notwithstanding  the  fraud  upon  the  charter.^  (c?) 

5.  Conditions  subsequent  in  railway  charters,  by  which  is  to  be 
understood  such  acts  as  they  are  required  to  perform  after  their 
organization,  will  ordinarily  form  the  foundation  of  an  action  at 

*  Walker  v.  Devereaux,  4  Paige,  229;  s.  c.  1  Redf.  Am.  Railw.  Cas.  29. 
The  entire  ground  of  ciiancery  jurisdiction  in  regard  to  the  conduct  of  cora- 
missioiiers  or  corporations  in  making  colorable  subscriptions  of  stock  is  here 
verj'  fully  discussed.  The  conclusion  reached,  that  colorable  subscriptions  or 
fraudulent  distribution  of  stock  will  not  render  the  organization  invalid  un- 
less the  thing  is  arrested  in  limine,  seems  to  be  the  only  practicable  one.  John- 
ston V.  South  Western  Railroad  Bank,  3  Strob  Eq.  263;  Selma  &  Tennessee 
Railroad  Co.  v.  Tipton,  5  Ala.  787;  Hayne  v.  Beauchamp,  5  Sni.  &  M.  515.  The 
decision  of  the  commissioners  is  conclusive  upon  the  company  and  shareholders, 
certainly  at  law.  Crocker  v.  Crane,  21  Wend.  211 ;  s.  c.  1  Redf.  Am.  Railw. 
Cas.  42.  And  where  the  charter,  or  act  of  association,  names  commissioners 
to  take  up  subscriptions,  they  alone  have  jurisdiction  of  the  matter,  and  sub- 
8crii>tions  taken  up  by  volunteers  are  not  binding  upon  the  subscribers  unless 
adopted  by  the  commissioners.  Shurtz  v.  Schoolcraft  &  Three  Rivers  Rail- 
road Co.,  9  Mich.  269. 

((f)  The    subscriptions    should  be     Co.  v.  Felt,  52  N.  II.  379;  O-skaloosa 
absolute  and  not  conditional.     A  sub-     Agricultural  Works  i;.  Parkhurst,  54 
scription  on  condition  precedent  is  but     Iowa,  357. 
an  offer.     See   Monadnock   Railroad 
[*66] 


§  18.]  ORGANIZATION    OF   THE   COMPANY.  67 

law,  in  favor  of  the  party  injured  ;  or  tlicy  may  be  specifically  en- 
forced in  courts  of  equity,  in  cases  proper  for  their  interference 
in  that  mode  ;  or,  if  the  charter  expressly  so  provide,  proceedings 
by  way  of  scire  facias  to  avoid  the  charter  may  be  taken.^ 

6.  Where  a  statute  declares  certain  persons  by  name,  and  such 
other  persons  as  shall  hereafter  become  stockholders,  a  corporation, 
the  distribution  of  the  stock,  in  the  mode  pointed  out  in  the  statute, 
is  a  condition  precedent  to  the  existence  of  the  corporation.^ 

7.  Where  the  charter  of  a  railway  company  appoints  a  certain 
number  of  commissioners  to  receive  subscriptions  and  distribute 
the  stock,  in  such  manner  as  they  shall  deem  most  conducive  to 
the  interests  of  the  company,  making  no  provision  in  regard  to  a 
quorum,  all  must  be  present  to  consult  when  they  distril)utc  the 
stock,  although  a  majority  may  decide,  this  being  a  judicial  act. 
*  Receiving  subscriptions  is  a  merely  ministerial  act  and  may  be 
performed  by  a  number  less  than  a  majority.^ 

If  the  organization  of  a  corporation  is  regular  upon  its  face,  and 
the  legislature  have  recognized  it  as  such  subsequently  to  its  having 
gone  into  operation,  it  becomes  ijjso  facto  a  legal  corporation." 

8.  Questions  in  regard  to  the  organization  or  existence  of  the 
corporation  can  only  be  raised  ordinarily  upon  an  express  pica, 
either  in  abatement  or  in  bar,  denying  its  existence.^ 

^  2  Kent  Com.  30.3,  and  notes. 

6  Crocker  v.  Crane,  21  Wend.  211;  s.  c.  2  Am.  Railw.  Cas.  484;  s.  c. 
1  Redf.  Am.  Railw.  Cas.  42.  "Where  the  statute  names  a  large  number  of  per- 
sons, and  enacts  that  they,  or  any  three  of  them,  may  act  as  commissioners,  either 
the  whole  number  or  any  three  may  act  at  the  election  of  tiie  individuals. 
No  particular  form  of  words  i.s  required  to  create  the  errant  of  a  corporation. 
The  grant  of  power  to  perform  corporate  acts  implies  tlie  grant  of  corporate 
powers.     (Commonwealth  v.  West  Chester  Railway  Co.,  3  Grant  Cas.  200. 

■'  Hlack  River  6i.  Utica  Railway  Co.  v.  Rarnard,  31  l?arb.  208. 

*  Boston  Type  &  Stereotype  Foundry  v.  Spooner,  5  Vt.  93,  and  cases  cited; 
Rail.sback  v.  Liberty  &  Abington  Turnpike  Co.,  2  Cart.  6.'>0.  But  some  ca.ses 
seem  to  require  such  proof  to  establish  the  contract.  Stoddard  v.  Onondaga 
Annual  Conference,  12  Barb.  073;  lleaston  r.  Cincinnati  &  Fort  Wayne  Rail- 
road Co..  1()  Ind.  275.  One  who  executes  his  promissory  note  to  a  company 
by  its  corporate  name  is  estopped  to  deny  its  corporate  existence.  East  Tas- 
cagoula  Hotel  Co.  t'.  West,  13  La.  An.  541;  s.  p.  Black  River  Railroad  Co.  v. 
Clarke,  25  N.  Y.  280.  But  in  an  action  by  a  corporation  on  a  judgment,  tlie 
defendant  is  estopped  to  plead  that  no  such  corporation  exists,  even  if  he  pro- 
pose to  jirove  its  dissolution  after  the  date  of  tin-  judgment.  He  should  plead 
such  matter  specially.  Perth  Aniboy  Steamboat  Co.  v.  Parker,  2  Phila.  G7. 
But  see  Anderson  v.  Kerns  Draining  Co.,  14  Ind.  109. 

[*C7] 


58  PROCEEDINGS   UNDER   THE    CHARTER.  [PART   II. 

9.  But  all  the  cases  concur  in  the  proposition,  that  the  existence 
of  the  cori)oration,  the  legality  of  its  charter,  and  the  question  of 
its  forfeiture,  cannot  be  inquired  into,  in  any  collateral  proceed- 
ing, as  in  a  suit  between  the  company  and  its  debtors,  or  others 
against  whom  it  has  legal  claims.'^  (e) 

10.  The  records  of  the  corporation  are  prima  facie,  but  not  in- 
dispensable, evidence  of  its  organization  and  subsequent  proceed- 
ings.''^    But  the  authenticity  of  the  books,  as  the  records  of  the 

9  Duke  V.  Cahawba  Navigation  Co.,  16  Ala.  372;  infra,  §  212,  note  6.  But 
in  an  action  against  a  stockholder  for  the  debt  of  the  company  under  the  stat- 
ute, the  existence  and  organization  of  the  company  must  be  proved;  and 
judgment  against  the  company  is  not  evidence  against  the  stockholder. 
Hudson  V.  Carman,  20  Law  Rep.  216;  s.  c.  41  Me.  81;  Cleveland,  Painsville, 
&  Ashtabula  Railroad  Co.  v.  Erie,  27  Penn.  St.  380.  See  also  Eakright  v. 
Logansport  &  Northern  Indiana  Railroad  Co.,  13  Ind.  404.  The  subscription 
to  the  stock  of  a  corporation  estops  the  subscriber  to  deny  the  coi'porate  exist- 
ence; nor  can  the  subscriber  plead  in  defence  of  such  subscription  that  other 
subscribers,  by  means  of  secret  fraudulent  agreements,  were  promised  sliares 
on  terms  different  from  those  specified  in  the  agreement,  since  such  fraudu- 
lent arrangements  are  of  no  validity,  and  cannot  avail  the  parties  on  who.se 
behalf  they  are  made.  Anderson  v.  Newcastle  &  Richmond  Railroad  Co.,  12 
Ind.  376. 

^^  Angell  &  Ames  Corp.  §  513;  Grays  v.  Lynchburg  &  Salem  Turnpike  Co., 
4  Rand.  578;  Buncombe  Turnpike  Co.  v.  McCarson,  1  Dev.  &  Bat.  306; 
1  Greenl.  Ev.  §493;  Rex  v.  Martin,  2  Camp.  100;  Hudson  v.  Carman,  20 
Law  Rep.  216;  s.  c.  41  Me.  84.  A  corporation,  to  establish  its  existence  in 
a  litigation  with  individuals,  need  only  prove  its  charter  and  user  under  it. 
This  constitutes  it  a  corporation  de  facto,  and  that  is  sufficient,  in  ordinary 
suits  between  the  corporation  and  its  debtors.  The  validity  of  its  corporate 
existence  can  be  tested  only  by  proceedings  in  behalf  of  the  people.  Mead  v. 
Keeler,  24  Barb.  20.  Between  the  company  and  strangers,  the  records  of  the 
company  will  ordinarily  be  held  conclusive  against  it  in  regard  to  such  mat- 
ters as  it  is  its  duty  to  perform.  Zabriskie  v.  Cleveland,  Columbus,  &  Cin- 
cinnati Railroad  Co.,  10  Am.  Railw.  T.  No.  15;  s.  c.  affirmed,  23  How.  381; 

(e)  But  liere  again  there  would  of  collaterally;  of  the  latter,  by  the 
seem  to  be  a  distinction  where  the  state  alone.  First  National  Bank  r. 
existence  is  alleged  to  depend  on  the  Davies,  43  Iowa,  424.  And  see  Lord 
performance  of  certain  conditions  pre-  v.  Essex  Building  Association,  37 
cedent,  between  the  case  of  conditions  Md.  320;  People  v.  Chambers,  42 
which  are  necessary  steps  in  the  process  Cal.  201;  Mokelumne  Hill  IMining 
of  incorporation  and  conditions  re-  Co.  v.  Woodbury,  14  Cal.  421;  Ham- 
quired  of  individuals  seeking  to  be-  mond  v.  Straus,  53  Md.  1;  Perkins  v. 
come  incorporated.  Non-performance  Sanders,  56  Miss.  733. 
of  the  former  may  be  taken  advantage 

[♦G7] 


§  18.]  ORGANIZATION    OP   THE   COMPANY.  59 

*  corporation,  must  bo  shown  l)y  the  testimony  of  the  pro[)er 
ofliccr  entitled  to  their  custody,  or  that  of  some  other  person  cog- 
nizant of  the  fact.^^ 

11.  Questions  sometimes  arise  as  to  what  constitutes  member- 
ship in  a  corporation.  This  has  to  be  determined,  in  most  ajrgre- 
gate  corporations,  by  the  just  construction  and  fair  import  of  tlie 
charter  and  by-laws  of  the  body.  The  usage  of  the  corporation 
and  of  other  similar  bodies  will  be  of  controlling  force  in  deter- 
mining such  questions.  But  the  power  of  maintaining  in  some 
mode  a  supply  of  members  of  the  body,  is  incident  to  all  corpora- 
tions, as  indispensable  to  its  continued  existence.^^ 

Heastou  v.  Cincinnati  Co.,  IG  Ind.  275.  Upon  the  general  question  of  proof 
and  presumption  of  the  organization  of  corporations  see  Leonardsville  Bank  v. 
Willard,  '25  N.  Y.  574;  Belfast  &  Angelica  Plank  Road  Co.  v.  Chamberlain, 
32  X.  y.  651 ;  Buffalo  &  Allegheny  Railway  Co.  v.  Gary,  26  N.  Y.  75.  Where 
the  statute  under  which  an  mcorporation  is  formed  in  another  state  required, 
that  before  the  corporation  should  commence  business  it  should  cause  its  arti- 
cles of  association  to  be  published  in  a  prescribed  form,  it  was  held  that  it 
might  be  regarded  as  sufficiently  incorporated  for  the  bringing  of  an  action 
without  the  publication;  and  that  the  general  reputation  and  notoriety  of  the 
fact  that  the  corporation  was  doing  business  in  that  capacity,  coupled  with  the 
fact  that  the  contract  sued  on  was  made  payable  to  it,  was  sufficient  evidence 
of  the  corporate  existence.  Holmes  v.  Gilliland,  41  Barb.  5GS.  See  Unity 
Insurance  Co.  v.  Cram,  43  X.  H.  63G,  where  the  rule  of  construction  is  some- 
what more  strict. 

There  seems  to  be  no  rule  of  practice  better  settled  than  the  rule  that  where 
the  defendant,  in  a  suit  brought  by  a  corporation,  pleads  the  general  issue,  he 
thereby  concedes  the  right  of  the  plaintiff  to  sue  in  his  corporate  capacity. 
Orono  V.  Wedgeworth,  44  Me,  49.  The  members  of  a  mutual  insurance  com- 
pany cannot  dispute  the  corporate  existence  in  a  suit  on  the  premium  notes  in 
favor  of  a  receiver  appointed  to  wind  up  the  concerns  of  the  company.  Hyatt 
V.  Whipple,  157  Barb.  595.  Misnomer  of  corporations  must  be  pleaded  in 
abatement,  or  it  will  be  regarded  as  waived.  Keech  v.  Baltimore  &  Washing- 
ton Railway  Co.,  17  Md.  32. 

"  Higliland  Turnpike  Co.  v.  McKean,  10  Johns.  154.  See  Breedlove  v. 
Martinsville  &  Franklin  Railroad  Co.,  12  Ind.  114. 

1-  Hicks  V.  Launceston,  1  Rol.  Abr.  513,  514;  s.  c.  8  East,  272  note.  Sec 
also  2  Kent  Com.  294.  It  is  not  competent  for  the  defendant,  in  an  action  by 
a  corporation,  to  plead  that  the  company  has  committed  acts  working  a  for- 
feiture of  its  corporate  franchises.  Tliat  can  be  determined  only  by  a  suit  on 
behalf  of  the  public,  brought  expressly  to  try  that  question.  Commonwealth 
V.  Morris,  1  Phila.  411;  Coil  v.  Pittsburgh  Female  College,  40  Penn.  St.  43!); 
Dyer  v.  Walker,  id.  157.  Membership  in  the  corporation  is  not  affected  by 
the  certificate  of  shares  containing  a  promise  to  pay  interest  till  a  certain 
time.     McLaughlan  v.  Detroit  &  Milwaukee  Railway  Co.,  8  -Mich.  100. 

[*68,  •69] 


GO 


PROCEEDINGS   UNDER   THE   CHARTER. 


[part  II. 


*  12.  But  in  joint-stock  business  corporations,  like  banks  and 
railways,  and  other  similar  companies,  membership  is  originally 
constituted  by  subscription  to  the  shares  in  the  capital  stock  ;  and 
it  is  subsequently  continued  by  the  transfer  of  such  shares,  in  con- 
formity with  the  charter  and  by-laws  of  the  company,  and  no 
election  by  or  assent  on  the  part  of  the  corporation  is  requisite, 
unless  made  so  by  the  charter  or  by-laws. 

13.  ►Serious  questions  often  arise  in  regard  to  the  allotment  and 
acceptance  of  shares.  Courts  of  equity  have  sometimes  declined 
to  interfere  to  carry  into  effect,  specifically,  contracts  with  the  pro- 
moters to  accept  shares  in  the  company  when  it  should  be  fully 
organized.!^  But,  we  apprehend,  the  rule  is  generally  otherwise,  as 
we  have  stated  elsewhere.^*  And  one  who  has  made  the  requisite 
deposit,  and  also  the  formal  application  to  the  company  for  an 
allotment  of  shares,  is  still  at  liberty  to  withdraw  the  application 
at  any  time  before  it  is  accepted  or  any  allotment  made.^^ 


SECTION   II. 
Acceptance  of  Charter  or  of  Modification  thereof. 


1.  New  or  altered  charter  must  be  for- 

mally accepted. 

2.  Subscription  for  stock  sometimes  suffi- 

cient. 

3.  Inojjcrative  unless  made  as  required. 

4.  Assent  to  beneficial  grant  presumed. 


5.  Matter  of  presumption  and  inference. 

6.  Organization  or  acceptance  of  charter 

may  be  shown  by  parol. 

7.  Corporators  assenting  are  bound. 

8.  Charter   subject    to    recall   until  ac- 

cepted. 


§  19.  1.  It  is  requisite  to  the  binding  effect  of  every  legislative 
charter  (or  modification  of  such  charter)  of  a  joint-stock  company, 
*  that  it  should  be  accepted  by  the  corporators.^  This  question 
more  commonly  arises  in  regard  to  the  modification  of  a  charter, 
or  the  granting  of  a  new  charter,  the  company  in  either  case, 

"  Oriental  Inland  Steam  Co.  i-.  Briggs,  2  Johns.  &  H.  625;  s.  c.  4  Law  T. 
N.  8.  578.  But  this  case  was  affirmed  by  the  Lord  Chancellor,  on  the  ground 
that  there  was  no  valid  or  complete  contract.     5  Law  T.  n.  s.  477. 

"  Infra,  §  34,  pi.  6.  is  Ex  parte  Graham,  7  Jur.  n.  s.  981. 

^  KinjT  V.  Pasmore,  3  T.  R.  200,  240;  Ellis  v.  Marshall,  2  ]\Iass.  269.  In 
the  latter  case  there  was  a  charter  to  certain  persons  by  name,  for  the  purpose 
of  makin?  a  street,  and  subjecting  them  to  assessment  for  the  expense,  and  it 
was  held  not  to  bind  a  person  named  in  the  act,  unless  he  assented  to  it. 

[*70J 


§  19.]  ACCEPTANCE   OR   MODIFICATION    OF    CHARTER.  CI 

whether  under  Uic  old  or  (lie  new  cliartcr,  ffoing  forward  to  all 
appearance  much  tlie  same  as  before.  In  sucli  case,  it  has  usually 
been  regarded  as  important  to  show  some  delinite  act  of  at  least  a 
majority  of  the  corporation.^ 

2.  The  question  of  acceptance  becomes  of  importance  often, 
where  a  partnership,  or  some  of  its  members,  obtain  an  act  of  in- 
corporation. Ijut  ordinarily,  in  the  first  instance,  the  assent  of 
the  stockholders  or  corporators  is  sufliciently  indicated  by  the 
mere  subscri])tion  to  the  stock. 

3.  Where  a  statute  in  relation  to  a  corporation  requires  accei)t- 
ance  in  a  prescribed  form,  and  that  is  not  complied  with,  the  cor- 
poration can  derive  no  advantage  from  the  act.^ 

4.  It  has  been  held,  that  grants  beneficial  to  corporations  may 
be  presumed  to  have  been  accepted  by  them,  the  same  as  in  the 
case  of  natural  persons.*  (a) 

5.  And  in  the  majority  of  instances,  perhaps,  tlic  acceptance  is 
rather  to  be  inferred  fi'om  the  course  of  conduct  of  the  company 
than  from  any  exj)ress  act.^ 

6.  It  may  always  be  proved  by  oral  testimony,  as  may  also  the 
organization  of  the  company,  ordinarily.^ 

7.  In  a  case  in  Ohio,  where  an  amendment  of  the  chartor 
of  a  bank  was  passed  by  the  Icgislatm-e  giving  the  bank  certain 
immunities  and  privileges,  upon  the  assent  of  all  the  stockholders 
in  writing,  filed  with  the  auditor  of  the  state,  to  become  personally 
responsible  for  the  liabilities  of  the  company  in  the  manner  pre- 
scribed *  in  the  act,  it  was  held,  that  although  all  the  stockholders 
did  not  subscribe  the  required  written  declaration,  yet  if  the  l)ank 
had  enjoyed  the  benefits  secured  by  the  amendment,  neither  those 
stockholders  who  did  subscribe  it,  nor  the  bank  itself,  can  deny 

2  WiLMOT  J  ,  in  Rex  v.  Vice-Chancellor  of  Cambridge,  -T  I'lir.  IHIT;  Rex 
V.  Amery,  1  T.  R.  .')75;  Falconer  v.  Campbell,  2  McLean,  195. 

8  Green  v.  Seymour,  3  Sandf.  Ch.  285. 

*  Charles  River  Bridge  v.  Warren  Bridge,  7  Pick.  311,  per  Parker,  C.  J., 
and  Wilde,  J. 

'  United  States  Bank  v.  Dandridge,  12  Wheat.  61,  per  Story,  J.,  and  cases 
cited. 

«  Coffin  V.  Collins,  17  Me.  410;  Manchester  Bank  v.  Allen,  11  Vt.  302; 
Angell  &  Ames  Corp.  §§81-87;  Dartmouth  College  c.  Woodward,  1  AVheat. 
688;  Wilmington  &  Manchester  Railroad  Co.  v.  Saunders,  3  Jones,  126. 

(a)  And  acceptance  may  be  pre-  lanta  r.  Gate  Ciiy  Gaslight  Co.,  71  (la. 
sumed  from  previous  application.    At-     lOG;  Perkins  i'.  Sanders,  5G  Miss.  733. 

[•71] 


62 


PROCEEDINGS   UNDER   THE   CHARTER. 


[part   II. 


the  acceptance  of  the  amendment,  as  against  the  claims  of  third 
persons.' 

8.  And  where  the  constitution  of  the  state  is  so  altered  as  to 
proliibit  the  grant  of  special  acts  of  incorporation,  it  was  held,  that 
such  an  act  granted  before  the  new  constitution  took  effect,  and 
which  had  not  been  accepted  by  the  corporators,  could  not  be 
accepted  thereafter  ;  as  the  grant  of  a  charter  to  those  who  had 
not  applied  for  it,  until  it  was  accepted,  remained  a  mere  offer,  and 
might  be  withdrawn  at  the  pleasure  of  the  grantors.^  But  where 
any  amendment  of  the  charter  of  a  corporation  is  fully  accepted 
by  the  shareholders  before  the  new  constitution  takes  effect,  it  can- 
not be  affected  by  any  of  the  provisions  thereof ;  and  what  shall 
amount  to  such  acceptance  is  matter  of  fact,  depending  upon  the 
construction  of  the  facts  proved.^ 


SECTI0:JT   III. 


Ordinary  powers  —  Control  of  majority. 


1.  Ordinary  franchises  of  railways,  like 

those  of  other  private  corporations 
appregrate. 

2,  3.  Implied  right  of  majority  to  control. 

4.  Cannot  change  organic  law. 

5.  Except  in  the  prescribed  mode. 

6.  Nor  accept  amended  charter. 

7.  Nor  dissolve  corporation. 

8.  May  obtain  enlarged  powers. 

9.  Equity  will   not   restrain   the  use  of 

funds  for  that  purpose. 


10.  But  will,  for  conversion  of  canal  into 

railway. 

11.  Eight  to  interfere   lost  by  acquies- 

cence. 

12.  Acquiescence  of  one  plaintiff,  fatal. 

13.  Railway  a  public  trust. 

14.  Suit  maintained  by  rival  interest. 

15.  Equity   will    not  restrain    majority 

from  winding  up  except  for  fraud, 
&c. 


§  20.  1.  The  ordinary  powers  (a)  of  a  railway  company  are  the 
same  as  those  pertaining  to  other  joint-stock  aggregate  corpora- 

^  Owen  I'.  Purdy,  12  Ohio  x.  s.  73.  And  a  legislative  permission  to  a 
}>lank-road  company  to  mortgage  its  corporate  property  is  an  amendment 
which  may  be  accepted  by  the  vote  of  the  majority.  And  the  same  is  true  of 
all  amendments  calculated  merely  to  facilitate  the  attainment  of  the  existing 
objects  and  purpo.ses  of  the  corporation.  Joy  v.  Jackson  &  Michigan  Tlank 
Road  Co.,  11  Mich.  15.5. 

8  State  V.  Dawson,  16  Ind.  40.  »  State  v.  Dawson,  22  Ind.  272. 

{n)  A  corporation  ha,s  such  powers  so    conferred.     Central    Railroad    & 

only  as  are  expressly  conferred  or  as  Banking   Co.  v.  Smith,  76  Ala.  572. 

are  necessary  to  the  exercise  of  powers  One  of  the  ordinary  powers  of  the  cor- 
[•71] 


§  20.]  ORDINARY   CORPORATE   POWERS.  68 

tions,  unless  restricted  by  tlie  express  provisions  of  their  charter, 
*  or  by  the  general  laws  of  the  state.  These  are  i)erpetual  succes- 
sion ;  the  power  to  contract,  to  sue  and  be  sued  by  the  corporate 
name,  "to  hold  land  for  the  purposes  of  the  incorj)oration,  to  have  a 
common  seal,  and  to  make  its  own  by-laws  or  statutes,  not  incon- 
sistent with  the  charter,  or  the  laws  of  the  state. ^  And  it  may  be 
proper  to  say,  that  it  is  implied  in  the  grant  of  all  business  cor- 
porations, that  they  possess  the  power  to  acquire  and  convey  such 
property,  both  real  and  personal,  as  shall  be  found  reasonably 
necessary  and  convenient  for  carrying  into  successful  operation 
the  purposes  of  their  incorporation.  And  when  there  is  no  limita- 
tion upon  this  power  in  the  act  of  incorporation,  it  can  only  be 
limited  by  writ  of  mandamus  or  injunction,  out  of  chancery,  at  the 
suit  of  the  attorney-general,  or  by  some  other  proceeding  on  the 
part  of  the  peo{)lc.  Until  some  such  public  interference,  the  title 
of  the  corporation  will  be  good. 

2.  The  right  of  the  majority  of  a  joint-stock  company,  whether 
a  copartnership  or  a  corporation,  to  control  the  minority,  is  a  con- 
sideration of  vital  importance,  and  will  be  more  extensively  dis- 
cussed hereafter. 2  {b} 

3.  There  can  be  no  doubt  that  the  general  principle  of  the  right 
of  the  majority  to  control  the  minority,  in  all  the  operations  of 
the  company,  within  the  legitimate  range  of  its  organic  law,  is 
implied  in  the  very  fact  of  its  creation,  whether  expressly  con- 
ferred or  not.^  (f) 

»  Waif.  Raihv.  G9;  1  Bl.  Com.  475,  476;  2  Kent  Com.  277,  where  the 
power  of  anintion  of  members  for  just  cause  is  added. 

2  ;»//•«,  §§  50,  212. 

8  Louisville,  Cincinnati,  &  Charleston  Railway  Co.  r.  Letson,  2  How.  407. 
The  very  definition  of  a  corporation,  that  it  is  an  artificial  being  comi>oscd  of 

poration  is  the  power  to  apply  in  equity  (b)  A    member   of  a   corporation 

to  have  fraudulent  aa;reements  of  its  assents   to   the   rule  of  the    majority 

directors   set   aside;   and  proceedings  only   where   the   rule   is   within    the 

by  a  single  shareholder  will  enure  to  powers   of    the   corporation.     Leo  v. 

the  benefit  of  all  the  shareholders,  if  Union  Pacific  Railroad  Co.,  IG  Am. 

promptly   instituted.      His   diligence  &  Eng.  Raihv.  Cas.  452. 

will  be  their  diligence,  and  laches  will  (c)   See  Dudley  r.  Kentucky  Ilijih 

not  be  imputable  to  them.     Metropoli-  School,  9  Rush,  578,  per  Lindsay,  J. 

tan  Elevated  Railway  Co.  r.  Manhattan  And   see  also   Durfee  r.  Old   Colony 

Railway  Co.,  15  Am.  &  Eng.  Railw.  Railroad  Co.,  5  Allen,  242,  per  Bige- 

Cas.  1.  LOW,  C.  J. 

[*7-2] 


64  rUOCEEDINGS    UNDER    THE    CHARTER.  [PART    II. 

4.  And  pcrliajjs  it  is  equally  implied  in  the  fundamental  com- 
pact, that  the  majority  have  no  power  to  change  the  organic  law 
of  *  the  association,  except  in  conformity  to  some  express  provision 
therein  contained. 

5.  This  princi|)lc  lies  at  the  foundation  of  all  the  political  or- 
ganizations in  this  country,  which,  in  theory  certainly,  are  not 
liable  to  be  changed  by  the  will  of  the  majority,  except  in  the  mode 
pointed  out  in  the  constitution  of  the  state  or  sovereignty.  And 
corporations  are  not  subject  to  the  ultimate  right  of  revolution, 
which  is  claimed  to  exist  in  the  state,  and  which  may  be  exercised 
by  the  law  of  force,  which  is  a  kind  of  necessity  to  which  all  sub- 
mit when  there  is  no  open  way  of  escape.  This  could  have  no 
ai)])lication  to  a  commei'cial  company,  whose  movements  are  as 
much  under  the  control  of  the  courts  of  justice  as  those  of  a 
natural  person. 

6.  And  in  this  country  it  has  been  held,  that  the  acceptance  by 
the  majority  of  a  corporation  of  an  amendatory  act  does  not  bind 
the  minority.*  (c?)  An  amendment  to  tlie  charter  of  a  corpora- 
tion, to  become  binding,  must  either  have  been  applied  for  in  pur- 
suance of  a  vote  of  the  stockholders,  or  else  have  been  accepted 
by  such  vote ;  or  it  must  have  been  acted  under  for  such  a  length 

different  members,  and  existing  and  acting  as  an  abstraction,  and  having  its 
habitation  where  its  functions  are  performed,  presupposes  that  it  must  act  in 
conformity  with  its  fundamental  law,  which  is  according  to  the  combined 
results  of  its  members,  or  the  will  of  the  majority.  But  this  will  cannot 
change  its  fundamental  law  without  changing  the  identity  of  the  artificial 
being  to  which  we  apply  the  name  of  the  corporation.  See  St.  IMary's 
Church,  7  S.  &  R.  517;  New  Orleans,  Jackson,  &c.  Railroad  Co.  v.  Harris,  27 
Miss.  517.  See  also  Viz  parte  Rogers,  7  Cow.  52(J,  which  holds  that  if  the 
charter  requires  a  certain  number  to  be  present,  in  order  to  the  performance 
of  a  particular  act,  it  is  requisite  that  the  number  remain  till  the  act  is 
complete,  and  if  one  depart  before,  though  wrongfully,  it  will  defeat  the 
proceedings. 

*  New  Orleans,  Jackson,  &c.  Railroad  Co.  r.  Harris,  27  Miss.  517.  But 
this  rule  has  some  limitations.  "While  the  alteration,  if  fundamental,  must 
have  the  assent,  express  or  implied,  of  all  the  corporators  {infra,  pi.  8;  §  56, 
pi.  3,  7),  if  it  be  an  amendment  within  the  ordinary  range  of  the  original 
charter,  giving  increased  facilities  for  the  accomplishment  of  the  same  objects, 
it  m.iy  be  accepted  by  the  majority  so  as  to  bind  the  whole  company. 


(</)  See  Utley  v.  Donaldson,  94  U.  S.  47;  Whiteside  v.  United  States,  93 
U.  S.  2.35. 

[•73] 


§  20.]  ORDINARY   CORPORATE   POWERS.  C>') 

of  time  as  to  raise  a  rcasoiialjlc  presumption  of  knowledge  in  the 
shareholders,  and  subsequent  acquieseence.*^ 

7.  And  a  contract  of  a  manufacturing  corporation  to  employ  the 
plaintiff,  a  stockholder,  during  the  time  for  which  the  corporation 
is  established,  that  being  indefinite,  is  not  released  by  a  majority 
of  the  company  voting  to  dissolve  the  corporation  and  wind  up  its 
concerns,  discharging  the  plaintiff  from  his  employment,  and  tran.s- 
ferriiig  the  property  to  trustees  to  pay  the  debts  and  distribute  tho 
surplus  among  the  stockholders,  and  giving  notice  to  the  executive 
(l(^j)nrtment  of  the  state,  that  they  claimed  no  further  interest  in 
their  act  of  incorporation.^  (<;) 

*  8.  But  the  English  cases  seem  to  suppose,  that  it  is  incident 
to  every  business  cori>oration  to  obtain  such  extension  and  en- 
largement of  its  cor})orate  powers  as  the  course  of  trade,  and 
enterprise,  and  altered  circumstances,  shall  render  necessary  or 
desirable,  not  altogether  inconsistent  with  its  original  creation.^ 

9.  Hence  it  was  held  that  a  court  of  equity  will  not,  at  the  in- 
stance of  a  shareholder,  restrain  a  joint-stock  incorporated  com- 
pany, whose  acts  of  incorporation  prescribe  its  constitution  and 
objects,  from  applying,  in  its  corporate  capacity,  to  parliament, 
and  from  using  its  corporate  seal  and  resources,  to  obtaiu  the 
sanction  of  the  legislature  to  the  remodelling  of  its  constitution,  or 
to  a  material  extension  and  alteration  of  its  objects  and  powers.'' 

s  Illinois  River  Railway  Co.  r.  Zimmer,  20  111.  G54. 

8  Revere  i-.  Boston  Copper  Co.,  15  Pick.  351.  This  case,  although  put 
mainly  on  the  ground  of  plaintiff's  rights  being  indepentlent  of  the  law  of  the 
association,  yet  incidentally  involves  the  right  of  the  majority  of  the  corjwra- 
tors  to  change  its  constitutional  law.  See  also  Von  Schmidt  i;.  Huntington, 
1  Cal.  55,  and  Keaii  c.  Johnson,  1  Stock.  101,  where  it  is  held,  that  where  the 
charter  is  granted  for  a  limited  time,  it  must  continue  in  operation  till  the 
term  expires,  unless,  perhaps,  in  case  of  serious  loss,  or  of  consent  of  all 
the  corporators,  and  others  having  any  legal  interest  in  the  question.  The 
same  rule  was  declared  in  Louisiana  in  Lodge  No.  I.  v.  Lodge  No.  I.,  !•>  La. 
An.  53,  where  it  was  considered,  that  a  resolution  passed  by  the  majority  of 
the  members  of  a  corporation  giving  the  property  of  the  company  to  a  new 
corporation  of  which  the  members  voting  were  also  members,  and  the  delivery 
thereof  in  pursuance  of  such  resolution,  was  void. 

■'  Ware  v.  Grand  Junction  Waterworks,  2  Russ.  &  M.  170.  Lord  RuortvuAM 
seems  here  to  suppose,  that  the  riglit  of  petition  to  parliament  for  enlarge- 

(c)  Nor  can  the  majority  assent  to  Line    Railroad   Co.,   35    :\lioh.   217; 

a  consolidation    of    the    corporation  Clearwater  t'.  Meredith.  1  ^^  al.  25. 
with  another.     Tattle  v.  Michigan  Air 

VOL.  1.  — 5  C*""^] 


66  PROCEEDINGS   UNDER   THE    CHARTER.  [PART   II. 

10.  In  one  case,  where  the  purpose  of  the  company  was  to  apply 
to  parliament  for  leave  to  convert  part  of  its  canal  into  a  railway, 
the  Vicc-Chancellor  granted  the  injunction  against  applying  any 
of  its  existing  funds  to  the  proposed  object.^  This  is  the  more 
common  view  of  the  subject  in  this  country,  and  to  a  great  extent 
in  England.^  (/") 

11.  But  this  right  of  the  minority  of  the  shareholders  to  inter- 
fere *  by  way  of  injunction,  to  restrain  the  majority  from  obtain- 
ing permission  to  alter  the  constitution  of  the  corporation,  may 
undoubtedly  be  lost  by  acquiescence.^^  (g')  Thus  Avhere  the  share- 
holders know  of  the  purpose  of  the  directors  to  apply  the  funds 
of  the  company  to  the  construction  of  part  only  of  the  road,  to  the 
abandonment  of  the  remainder,  and  remained  passive  for  eighteen 
months,  while  the  directors  were  applying  large  sums  to  the 
completion  of  this  part  only,  the  court  refused  to  interfere  by 
in  j  unction. 1*^ 

meiit  of  powers,  is  an  implied  incident  of  all  business  corporations,  by  which 
the  subscribers  are  bound,  unless  some  express  prohibition  is  inserted  in  the 
charter.  But  the  more  common  implication  in  this  country  certainly  is,  that  the 
original  shareholders  are  not  bound  by  any  such  alteration,  unless  such  power 
exists,  in  terms,  in  the  original  charter,  or  is  auxiliary  to  existing  powers. 

8  Cunliff  V.  Manchester  &  Bolton  Canal  Co.,  2  Russ.  &  :\r.  480,  note.  But 
it  is  here  stated,  that  a  few  days  afterwards,  one  Maudsley  filed  a  bill  against 
the  same  company  and  for  a  similar  object.  The  cause  was  heard  on  its 
merits,  and  the  suit  dismissed  with  costs.  Any  act  beyond  the  scope  of  the 
constitution  of  the  company  requires  the  consent  of  all  the  members.  Bur- 
mester  v.  Xorris,  6  Exch.  796;  s.  c.  8  Eng.  L.  &  Eq.  487. 

0  Infra,  §§  50,  181,  212. 

JO  Graham  i;.  Birkenhead,  &c.  Railway  Co.,  2  Macn.  &  G.  146;  s.  c.  6  Eng. 
L.  &  Eq.  132;  Beman  v.  Rufford,  1  Sim.  N.  s.  550.  Lord  Craxwouth  says, 
"  This  court  will  not  allow  any  of  the  shareholders  to  say,  that  they  are  not 

(/)  See  Railway  Co.  v.  Allerton,  18  v.  Union  Pacific  Railway  Co  ,  19  Fed. 

Wal.  263;  In  re  London  Discount  Co.,  Rep.  283.     And  one  shareholder  may 

Law  Rep.  1  Eq.  277,  maintain  a  bill  to  restrain  the  corpo- 

(</)  Kitchen   r.  St.  Louis  Railway  ration  from  an  act  ultra  vires,  though 

Co.,  69  Mo.  224;  Thompson  v.  Lam-  all  others  assent.    Dupont  i;.  Northern 

bert,  44   Iowa,  239;   Kent   v.  Quick-  Pacific  Railroad  Co.,  16  Am.  &  Eng. 

silver  Mining  Co.,  78  N,  Y.  159.    But  Railw.  Gas.  456.     Nor  is  a  shareholder 

a  shareholder  is  not  necessarily  pre-  who  has  acquiesced  in  an  unauthorized 

eluded  by  assenting  to  an  illegal  con-  act  precluded    by   such    acquiescence 

tract  from  applying  to  the  courts  to  from  opposing  other  like  acts.    Bloxara 

restrain  performance.     Still  it  is  mat-  r.    Metropolitan   Railway    Co.,     Law 

ter  of  discretion  with  the  courts.     Leo  Rep.  3  Ch.  337. 

[*75] 


§  20.]  ORDINARY   CORPORATE    POWERS.  67 

12.  And  if  one  of  tlie  sharclioldcr.s,  wl)0  has  acrpiicsccd  in  the 
diversion  of  the  funds,  be  joined  in  the  suit  with  others  who  have 
not,  no  relief  can  be  afforded.'^  And  there  can  be  no  doubt  of  the 
soundness  of  this  princij)lc,  although  the  effect  of  its  ai)j)licution 
may  be  to  produce  a  fundamental  alteration  of  the  constitution  of 
a  corporation,  and  thus  to  enable  them  to  do  what  they  had  no 
power  before  to  do.  J3ut  this  is  only  applying  to  the  case  the 
principle  of  implied  consent  of  all  the  shareholders,  resulting  from 
silence,  which  is  all  that  is  requisite  in  any  case  to  legalize  the 
alteration  of  the  charter  of  a  private  corporation. 

13.  It  is  said  in  one  case  by  an  eminent  equity  judge,  Vice- 
Chanccllor  Stuart  :  ^-  "  Although  generally  speaking  .  .  .  there 
can  be  no  doubt  of  the  soundness  of  the  principle,  that  the  direc- 
tors and  the  majority  of  the  company  may  be  restrained  from  em- 
ploying money,  subscribed  for  one  purpose,  for  another,  however 
advantageous,  .  .  .  and  although  this  is  the  law  as  to  joint-stock 
companies,  unincorporated  and  unconnected  with  public  duties  or 
interests,  it  has  not  been  ajjijlied  to  corporate  companies  for  a 
public  undertaking,  involving  public  interests  and  public  duties 
under  the  sanction  of  parliament.  In  such  cases  the  court  of 
chancery  has  *  permitted  the  use  of  the  corporate  seal,  and  the 
moneys  of  the  company,  to  obtain  the  sanction  of  parliament  to 
purposes  materially  altering  the  interests  of  the  shareholders, 
according  to  the  contract  inter  se.  This  was  done  in  the  case  of 
Stevens  v.  South  Devon  Railway  Company."  ^^  The  learned  judge 
therefore  concludes,  that  although  the  principle  first  stated  by 
him  may  apply  to  the  case  of  public  railway  companies  in  gen- 
eral, "  it  must  be  taken  to  be  subject  to  many  qualifications,  and 
requiring  much  caution  and  consideration"  in  its  application. 

14.  The  same  learned  judge  further  adds,  upon  the  important 
subject  of  such  proceeding  being  taken  by  one  in  the  interest  of  a 

interested  in  preventing  the  law  of  their  company  from  being  violated." 
Ffooks  V.  London  &  Southwestern  Railway  Co.,  1  Smale  &  G.  142;  s.  c.  19 
Eng.  L.  &  Eq.  7.  But  one  creditor  of  a  corporation  cannot,  by  injunction, 
restrain  another  creditor  of  the  same  grade  from  obtaining  prior  payment  by 
virtue  of  an  execution  issued  on  a  prior  judgment.  Gravenstiue's  Apj^eal, 
49  Penn.  St.  310. 

"  Ffooks  V.  London  &  Southwestern  Railway  Co.,  supra;  opinion  of  Vice 
Chancellor  Stuart,  and  cases  cited. 

^^  Ffooks  V.  London  &  Southwestern  Railway  Co.,  supra. 

"  13  Beavau,  48;  s.  c.  12  Eng.  L.  &  Eq.  229;  s.  c  9  Hare,  313. 

[♦76] 


68  TROCEEDINGS    UNDER   THE   CHARTER.  [PART   II. 

rival  company  :  "  It  has  been  suggested  that  this  suit  is  constituted 
to  serve  the  purposes  of  another  set  of  shareholders.  If  it  had 
been  established  that  the  real  object  of  seeking  this  injunction  had 
been  to  serve  the  interests  of  a  rival  comj)any,  I  should  have  con- 
sidered that  a  circumstance  of  great  importance  in  determining  the 
rights  of  the  plaintiffs  to  any  relief.  No  doubt  it  has  been  held 
in  several  cases,  that  the  mere  fact  that  the  plaintiffs  are  share- 
holders in  a  rival  company  is  no  reason  for  the  court  in  a  proper 
case  refusing  its  aid  to  prevent  the  violation  of  contracts.  But 
when  the  fact  is  established,  that,  under  the  pretence  of  serving 
the  interests  of  one  company,  the  shareholders  in  a  rival  company, 
by  purchasing  shares  for  the  purpose  of  litigation,  can  make  this 
court  the  instrument  of  defeating  or  injuring  the  company  into 
which  they  so  intrude  themselves,  in  order  to  raise  questions  and 
disputes  on  matters  as  to  which  all  the  other  members  of  the  com- 
pany may  be  agreed,  I  cannot  consider  that  in  such  a  case  it  is  the 
province  of  this  court  ordinarily  to  interfere.  In  questions  on  the 
law  of  contracts,  where  there  is  a  discretionary  jurisdiction  in  this 
court,  circumstances  affecting  the  condition  of  the  contracting 
parties,  and  the  origin  and  situation  of  their  rights  in  relation  to 
the  subject-matter  of  the  contract,  deserve  great  consideration." 

15.  But  in  a  later  English  case  i*  it  was  determined  by  Vice- 
Chancellor  Wood,  that  the  court  will  not,  upon  the  application  of 
the  minority  of  the  members  of  a  corporation,  interfere  with  a 
resolution  of  the  company  voluntarily  to  wind  up  its  concerns, 
unless  the  resolution  was  obtained  by  fraud,  or  by  overbearing 
conduct,  or  by  improper  influences.  (A) 

"  In  re  Imperial  Mercantile  Credit  Association,  12  Jur.  n.  s.  739. 


(/t)  See  Merchants'  Line  v.  Waganer,  71  Ala.  581. 
[*76] 


§  21.] 


MEETINGS   OF   COMPANY. 


69 


♦SECTION   IV. 
Meetings  of  Company. 


1.  Meetings,  special  and  general. 

2.  Special,  must  be  notified  as  required. 

3.  Special  and  important  matters,  named 

in  notice. 

4.  Notice  of  general  meetings  need  not 

name  business. 

5.  Adjourned  meetings,  still  the  same. 

0.  Company  acts  by  meetings,  by  direc- 
tors, by  agents. 

7.  Courts  presume  meetings  held  at 
proper  place. 


8.  Every  shareholder  may  vote,  but  not 

by  pro.xy. 

9.  General  owner  of  sliarcs  entitled  to 

vote  and  act  as  member. 

10.  Trustees  act  as  owners. 

11.  Stock  issued  in  the  name  of  B.  to  se- 

cure a  debt,  from  the  corporation 
to  A.,  cannot  be  voted  on. 

12.  Shares  held  as  collateral  security  can- 

not be  changed. 


§  21.  1.  By  the  English  statutes  meetings  of  railway  companies 
are  distinguished  as  "  ordinary  "  and  "  extraordinary."  Tliat  dis- 
tinction, in  this  country,  is  expressed  by  the  terms  "general"  and 
"  special."  Ordinary  meetings  are  the  annual  and  semi-annual 
meetings  of  the  company,  and  such  others  as  are  held  at  stated 
times  and  for  defined  objects,  according  to  the  provisions  of  the 
charter  and  by-laws ;  and  extraordinary  meetings  are  such  as  are 
held  by  special  call  of  the  directors,  or  other  officer  whose  duty  it 
is  made  to  call  meetings  of  the  company,  in  certain  contingencies 
usually  defined  by  the  statutes.^ 

2.  Notice  of  special  meetings  must  be  issued  in  conformity  to 
the  charter  and  statutes  of  the  corporation,  and,  where  no  special 
provision  exists,  must  be  given  personally  to  every  member.^  (<i) 

3.  Notice  of  special  meetings  should  ordinarily  specify  the  gen- 
eral purpose  and  object  of  the  call.     But  it  is  said  this  is  not  in- 

1  Statute  8  &  9  Vict.  c.  IG,  §  66. 

2  Wiggin  r.  Freewill  Baptist  Society,  8  Met.  301.  This  view  seems  to  be 
countenanced  by  Lord  Kenyox,  in  Rex  v.  Faversliam,  8  T.  R.  35'2.  And  see 
Rex  V.  ]\ray,  5  lUtr.  2GS1 ;  King  ;•.  Langliorn,  4  A.  &  E.  5:38.  Sei'  also,  cases 
cited  in  the  argument  of  this  case.  But  all  the  cases  agree,  that  if  the  mem- 
bers attend  even  without  notice,  it  is  sufficient.  King  v.  Theodorick,  8  East, 
513.  A  meeting  may  be  general  for  most  purposes,  and  also  special  for  a  par- 
ticular purpose.     Cutbill  r.  Kingdom,  1  Exch.  491. 

(a)  All  reasonable  presumptions  notice  on  each^  shareholder  will  be 
should  be  made  that  meetings  are  implied.  Sargent  c.  Webster,  13  Met. 
regularly  held;  and  service  of  proper     497. 

[•77] 


70  .  PROCEEDINGS   UNDER   THE   CHARTER.  [PART   II. 

di.s})cnsable,  when  it  is  for  the  transaction  of  ordinary  business, 
and  that  giving  security  for  the  debt  of  a  bank,  by  mortgage  of 
its  real  estate,  is  of  this  character.^  But  where  the  business  is 
unusual  and  important,  as  the  election  or  amotion  of  an  officer, 
the  making  of  by-laws,  or  other  matter  affecting  the  vital  interests 
and  fundamental  operations  of  the  corporation,  and  on  a  day  not 
*  appointed  for  the  transaction  of  business  of  this  character,  or 
of  all  business  of  the  corporation,  the  notice  must  state  the 
business,  or  the  action  upon  it  will  be  held  illegal  and  void.*  (5) 

4.  But  as  a  general  rule,  it  may  be  safely  affirmed,  perliaps, 
that  in  regard  to  general  meetings  of  the  company,  which  are  for 
the  transaction  of  all  business,  no  notice  of  the  particular  business 
to  be  done  is  necessary .^  And  all  the  members  of  the  corporation 
are  presumed  to  have  notice  of  their  stated  meetings  and  are  bound 
by  the  proceedings  at  such  meetings  ;  but  there  is  no  presumption 
that  they  know  what  is  done  at  such  meetings,  so  as  to  affect  them 
with  notice  of  anything  done  there  contemplating  future  action  at 
any  other  time  than  the  stated  meetings.^ 

5.  The  adjournment  of  a  general  meeting  is  not  a  special  meet- 
ing, but  the  mere  continuance  of  the  general  meeting,  and  requires 
no  notice  of  the  business  to  be  transacted.^     But  if  the  adjourned 

*  Savings  Rank  v.  Davis,  8  Conn.  191. 

*  Kex  V.  Doncaster,  2  Bur.  738;  Angell  &  Ames  Corp.  §§  488-496.  Zabris- 
kie  V.  Cleveland,  Columbus,  &  Cincinnati  Railroad  Co.,  10  Am.  Railw.  T.  No. 
15.  And  see  s.  c.  affirmed  23  How.  381,  where  this  subject  is  discussed  by 
Mr.  Justice  McLeax,  with  the  conclusion  that  where  the  question  to  be  deter- 
mined by  the  company  is  the  guaranty  of  the  bonds  of  a  connecting  railway 
to  a  large  amount,  under  a  statute  requiring  the  consent  of  the  shareholders 
at  a  meeting  in  which  two-thirds  of  the  capital  stock  is  represented,  it  is  in- 
dispensable that  the  call  for  the  meeting  state  the  business  to  be  transacted, 
and  be  given  long  enough  before  the  meeting  to  enable  the  remotest  share- 
holders to  attend,  or  communicate  -with  their  agents  or  proxies,  and  also  to 
enable  the  resident  agents  of  foreign  shareholders  to  communicate  with  the 
owners.  This  seems  but  a  just  and  reasonable  limitation  on  the  power  of 
corporations,  in  regard  to  special  meetings. 

6  Warner  v.  Mower,  11  Vt.  38.5;  s.  c.  1  Redf.  Am.  Railw.  Cas.  78;  Wills 
V.  Murray,  4  Exch.  843. 

«  People  V.  Batchelor,  22  N.  Y.  128. 

(I>)  But  qurere  if  the  notice  of  anj/  Old  Brewery  Co.,  Law  Rep.  2  Ch.  191. 

special  meeting  should  not  state  the  And    see    Ehrenfeldt's    Appeal,    101 

business,     /n  re  Silkstone  Fall  Colliery  Penn.   St.   186. 
Co  ,  Law  Rep.  1  Ch.  38;  In  re  Bridport 

[*78] 


§  21.]  MEETINGS   OF    COMPANY.  71 

mcctinj^be  for  the  transaction  of  any  ollior  l)usincss  than  the  nicro 
comj)l('lioii  ol  the  uiiliiiishcd  business  of  the  stated  oi-  s|)ccial  nicct- 
inir,  as  tiie  ciise  may  be;  and  more  csj)ccially  wh(.'re  the  business 
is  of  a  character  wliicii  could  not  have  Ijcen  Iciially  trausactcd  at 
the  former  meeting,  it  will  not  arr()rd  any  warrant  Im-  its  IcL'^ality 
that  it  is  (lone  at  an  adjourned  meetinu;  from  one  leirally  consli- 
tutcd  originally.''  But  the  [)ublicity  and  general  notoriety  of 
a  transaction  may  be  sufticicnt  *  ground  for  ])resuming  knowl- 
edge of  the  appointment  of  one  to  a  corporate  oHTice,  even  to 
the  extent  of  subjecting  such  corporator  to  a  penalty  for  non- 
acceptance.^ 

6.  By  the  English  statutes,  railways  may  act  in  either  of  three 
modes:  First,  by  the  general  assembly  of  the  shareholdei'S,  which, 
as  between  them  and  the  directors  and  other  agents  of  the  com- 
})any,  has  supreme  control  of  its  affairs;  second,  by  its  direc- 
tors ;  third,  by  its  duly  constituted  agents.^  The  same  general 
I>rinciple  is  apjjlicable  in  this  country,  and  at  common  law. 

7.  And  where  the  by-laws  require  the  meetings  of  the  company 
to  be  held  at  a  jtarticular  jdace,  as  the  counting-house  of  the  com- 
pany, and  the  record  or  evidence  does  not  show  that  the  meetings 
were  held  at  a  different  place,  it  will  be  presumed  they  were  held 
at  the  place  designated. ^°  (c) 

8.  Every  shareholder  is,  ordinarily,  entitled  to  participate  in  the 
meetings  of  members  of  the  corporation  duly  called  and  to  vote 
upon  all  his  shares,  according  to  the  mode  prescribed  in  the  char- 
ter and  by-laws  of  the  company,  and  in  conformity  with  the  gen- 
eral laws  of  the  state.  But  it  seems  not  well  settled  whether  a 
by-law  of  the  corporation  will  be  sufficient  to  entitle  the  members 
to  vote  by  proxy,  and  whether  some  legislative  sauction  is  not 
requisite  to  that  effect.^*     But  where  the  charter  provided  that 

■^  Teoplo  V.  P.atcholor,  22  N.  Y.  128;  Scadding  v.  Lorant,  5  Kn;;.  L.  &  Eq. 
IG.     See  Smith  v.  Law,  21  N.  Y.  29G. 

8  LoikIom  r.  Vanacre,  5  Mod.  438.  »  Waif,  l^ailw.  70. 

'0  IMcDanicls  v.  Flower  Brook  Mainifactnrinp:  Co.,  22  Vt.  271. 

"  State  V.  Tiulor,  ."i  Day,  020;  wliere,  in  more  hnsiiie.s.s  corporal ion.s,  it  was 
considered  that  a  by-law  wa.s  siifRoient  to  give  the  power  to  vote  by  proxy- 
P.ut  in  Taylor  v.  Griswold,  2  Green,  222,  the  contrary  opinion  is  maintained. 
See  also,  2  Kent  Com.  29 1.  There  seems  no  q>iestion  that  in  public  and  elee- 
mosynary corporations  the  members  must  attend  in  person. 


(r)  See  supra,  note  (a). 

[•79] 


72  PROCEEDINGS   UNDER   THE   CHARTER.  [PART  H. 

"  each  person  being  present  at  an  election  shall  be  entitled  to 
vote,''  it  was  held  to  mean  actual  presence,  and  votes  by  proxy 
were  properly  cxclndcd.^^ 

9.  The  question  is  sometimes  made,  where  shares  are  held  by 
creditors  as  collateral  security  for  debts,  which  party,  the  debtor 
or  the  creditor,  is  entitled  to  represent  the  shares,  so  held,  in  the 
meetings  of  the  company.  Upon  general  principles,  the  party  who 
l)ledges  or  mortgages  or  in  any  other  mode  hypothecates  shares 
as  security  for  a  debt,  is  still  to  be  regarded  as  the  general  owner, 
and  entitled  to  all  the  privileges  and  subject  to  all  the  responsi- 
bilities of  owncr.^^  (c?) 

10.  Trustees,  whether  testamentary  or  executors,  guardians,  or 
others  holding  shares  in  joint-stock  companies  for  the  ultimate 
benefit  of  others,  are  generally  entitled  to  act  as  members,  and  are 
responsible  as  such,  without  reference  to  the  extent  of  their  in- 
terest or  the  amount  of  the  trust  estates.^*  (g)  But  in  New  York 
even  this  is  denied  where  the  cestui  que  trust  is  sui  juris,  and,  as 
said,  the  latter  is  entitled  to  vote  upon  the  shares  and  to  act  as 
member,  by  virtue  of  the  interest  vested  in  the  trustee  for  his 
benefit. ^^ 

11.  And  in  California,^^  where  a  certificate  of  shares  was  issued 
by  a  corporation  in  the  name  of  B.,  in  order  to  secure  a  debt  of  the 
corporation  due  to  A.,  it  was  held  that  the  same  was  illegally  issued, 
and  that  no  one  could  vote  upon  it.  B.  could  not,  because  he  was 
a  mere  trustee  for  A.,  and,  as  between  them,  whatever  interest  was 
created  vested  beneficially  in  A.  And  A.  could  not  vote  upon  the 
stocks,  because  liis  property  was  not  that  of  the  general  owner,  but 

12  Hroom  v.  Common\Yealth,  2  Phillips,  156. 

13  Cummins  v.  Prescott.  2  Y.  &  Col.  Ex.  488;  Ex  parte  Willcocks,  7  Cow. 
402;  Ex  pnrtp.  Barker,  G  Weipd.  oOD ;  ^IcDaniels  v.  Flower  Brook  Manufac- 
turing Co  ,  22  Vt.  274.  The  same  is  declared  by  statute  in  Massachusetts. 
Gen.  St.  c.  G8,  §  13. 

"  Ex  parte  Iloare,  2  Johns.  &  II.  229;  s.  c.  8  Jur.  n.  s.  713;  Fearne  & 
Deane's  Case,  Law  Rep.  1  Ch.  App.  231. 

i**  Ex  parte  Holmes,  5  Cow.  426.     See  infra^  §  40,  pi.  5,  and  cases  cited. 
"  Brewster  i-.  Hartley,  37  Cal.  15. 

C'/)  Vail  I'.  Hamilton,  85  N.  Y.  453.  books.     :McIIenry  c.  Jewitt,  26  Hun, 

Rut  when  one  has  sold  his  shares,  he  453. 

is  not  entitled  to  vote,  though  there  (^)   In  rn  Xorth   Shore  Ferry  Co., 

has  been  no  transfer  on  the  company's  63  Barb.  556. 

[*79] 


§22.] 


ELECTION    OF   DIRECTORS. 


73 


that  of  a  pledgee.     And  the  corporation  could  not  vote  upon  its 
own  stock.  (/) 

12.  Where  shares  are  passed  as  collateral  security,  it  is  incum- 
bent upon  the  holder  to  return  the  identical  shares  received  by 
liim,  whenever  the  purposes  of  the  pledge  are  answered.  And  if 
the  shares  have  been  sold,  and  others  purchased  by  the  transferee 
at  a  less  price,  the  transferor  will  be  entitled  to  the  difference. 
But  if  the  transferor  have  parted  with  the  shares  before  he  is 
aware  that  they  have  been  changed,  he  cannot  maintain  a  bill  to 
restore  the  shares  originally  transferred,  since  he  will  be  bound 
to  first  restore  those  received  bv  him.^' 


♦SECTION  Y. 
Election  of  Directors. 


1.  Should  be  at  general  meeting,  or  on 

special  notice. 

2.  Shareholders  may  restrain  their  au- 

thority. 


.3.  Company  bound  by  act  of  directors  de 
facto. 

4.  Act  of  officer  de  facto,  binds  third  per- 
sons. 


§  22.  1.  The  election  of  directors  is  regarded  as  more  impor- 
tant to  the  interests  of  the  company  than  most  other  business,  in- 
asmuch as,  when  duly  elected,  they  hold  office  for  a  considerable 
term,  and  have  all  the  powers  of  the  corporation  in  regard  to  the 
transaction  of  its  ordinary  business,  unless  especially  restrained. 
They  should,  therefore,  be  elected  at  the  regular  meetings  of  the 
company,  and  even  vacancies  should  not  properly  be  filled  at 
special  meetings,  unless  special  notice  of  that  particular  business 
had  been  given  according  to  the  laws  of  the  company,  which  in- 
clude its  charter  and  statutes,  and  the  general  laws  of  the  state 
applicable  to  the  subject. 

2.  The  shareholders  may,  in  a  proper  assembly,  pass  statutes, 
general  or  special,  which  shall  control  the  directors,  as  between 
them  and  the  company.^     "Where  the  by-laws  of   the  company 

"  Langton  v.  Waite,  17  W.  R.  475. 

^  But  where  the  charter  vests  the  control  of  the  concerns  of  the  company  in 
a  select  board  or  body,  the  shareholders  at  large  have  no  right  to  interfere 

(/)  Nor  can  any  vote  be  cast  on  as  to  what  the  vote  shall  be.  In  re 
shares  whose  joint  owners   disagree     Pioneer  Paper  Co.,  36  How.  Pr.  111. 

[•80] 


74  PROCEEDINGS   UNDER   THE    CHARTER.  [PART   II. 

require  notice  of  the  meeting  for  electing  directors,  but  do  not 
specify  the  time  or  mode  of  such  notice,  it  must  be  given  accord- 
in"-  *  to  the  requirements  of  the  general  statutes  of  the  state  upon 
the  subjcct.2 

3.  But  tlie  company  cannot  object  that  its  directors,  who  have 
acted  as  such,  were  not  elected  at  a  meeting  properly  notified.'^  (a) 

with  the  doings  of  these,  their  charter  agents.  Commonwealth  v.  St.  Mary's 
Church,  6  S.  &  R.  508;  Dana  v.  United  States  Bank,  5  Watts  &  S.  223,  247; 
Conro  V.  Port  Henry  Iron  Co.,  12  Barb.  27.  And  courts  are  always  reluctant 
to  interfere  with  the  conduct  of  directors  of  a  corporation,  even  at  the  instance 
of  a  majority  of  the  shareholders,  and  ordinarily  will  not,  when  such  directors 
have  acted  in  good  faith.     State  t-., Louisiana  Bank,  6  La.  745. 

In  Scott  r.  Eagle  Fire  Co.,  7  Paige,  198,  it  was  held,  however,  that  the  di- 
rectors of  a  joint-stock  corporation  may  be  compelled  to  divide  the  actual  sur- 
plus profits  of  the  company  among  its  stockholders  from  time  to  time,  if  they 
neglect  or  refuse  to  do  so,  without  any  reasonable  cause.  But  if  they  abuse 
their  power  to  make  dividends  of  surplus  profits,  by  dividing  the  unearned 
premiums  received  by  them,  without  leaving  a  sufficient  fund,  exclusive  of 
the  capital  stock,  to  satisfy  the  probable  losses  on  risks  assumed  by  the 
company,  it  seems  they  will  be  personally  liable  to  such  ci'editors  of  the 
company,  if  in  consequence  of  extraordinary  losses  the  company  become 
insolvent. 

2  In  re  Long  Island  Railroad  Co.,  19  Wend.  37:  s.  c.  2  Am.  Railw.  Cas. 
453. 

'  Sampson  v  Bowdoinham  Steam  Mill  Co.,  36  Me.  78.  Where  persons 
have  acted  as  directors  of  a  railway  company,  the  court  will  not  summarily 
inquire  into  the  validity  of  their  appointment.  In  Thames  Haven  Dock  & 
Railway  Co.  v.  Hall,  5  Man.  &  G.  274,  286,  Tindal,  C.  J.,  said:  "If  the 
shareholders  allow  parties  to  act  as  directors,  it  may  be  they  have  no  right  to 
turn  round  in  a  court  of  justice  and  say  that  such  parties  were  not  properly 
elected."  In  Port  of  London  Assurance  Company's  Case,  5  De  G.  M.  &  G.  465; 
s.  c.  35  Eng.  L.  &  Eq.  178,  one  registered  insurance  company  agreed  to  sell 
its  business  to  another  registered  insurance  company,  and  a  deed  of  assign- 
ment was  accordingly  executed,  whereby  the  latter  company  covenanted  to 
indemnify  the  former  against  all  claims.  After  the  business  had  been  carried 
on  for  some  time  by  the  purchasing  company,  that  company  failed,  and  both 
companies  were  wound  up  under  the  Winding-up  Acts.  On  tender  by  the 
official  manager  of  the  selling  company  of  proof  against  the  purchasing  com- 
pany, in  respect  of  claims  satisfied  by  the  selling  company,  one  part  of  the 
deed  of  assignment  was  produced,  having  affixed  to  it  the  seal  of  the  purchas- 
ing company,  but  another  part,  alleged  to  have  been  executed  by  the  selling 

(a)  Nor   can   they   object    to  the  nary  doctrine  of  the  law  of  agency, 

acts  of  a  board  allowed  to  hold  over.  See  Despatch  Line  v.  Bellamy  Manu- 

Thorington    v.  Gould,    50    Ala.    461.  facturing   Co.,   12    X.    H.    223,   per 

This  gpner.al  rule  rests  on  the  ordi-  Parker,  J. 
-[*81] 


§  :^3.] 


MEETINGS   OF    DIKECTOaS. 


75 


Nor  can  the  validity  of  tlic  acts  of  the  directors  be  collaterally 
called  in  question  on  the  ground  of  irregularity  in  the  notice 
of  the  meeting  at  which  thi-y  were  elected.'*  Where  the  charter 
fixes  the  number  of  directors,  and  vacancies  occur,  the  act  of 
the  board  is  not  thereby  invalidated,  provided  a  quorum  still 
remains.^ 

4.  An  election  of  directors  will  not  be  set  aside,  because  the 
inspectors  of  the  election  were  not  sworn  as  required  by  the  stat- 
ute. This  statute  is  merely  directory,  and,  so  far  as  third  persons 
are  *  concerned,  it  is  suflicient  that  the  ins])cctors  were  elected 
and  entered  upon  the  duties  of  the  ollice,  and  became  officers  de 
facto.^ 


SECTION   VI. 


Meetings  of  Directors. 


1.  Every  director  should  he  notified. 

2.  Adjourned  meeting  requires  no  special 

noti(;e. 

3.  Bonrd  not  required  to  be  kept  full. 

4.  Usurpations  tried  by  shareiiolders  or 

courts. 


5.  Usage  will  often  excuse  irrepularities. 

6.  Decisions  of  majorit}'  usually  valid. 

n.  8.  Records  of  proceedings,  evidence. 

7.  The  action  must  be  takeu  at  a  formal 

meeting. 


§  23.  1.  As  a  general  rule,  where  corporate  powers  are  vested 
in  certain  members,  whether  the  whole  body  of  the  shareholders, 
the  directors,  or  a  committee,  and  the  general  laws  of  the  state, 

company,  was  not  forthcoming.  The  court  held  that  it  was  unnecessary  to 
determine  whether  the  sellins;  company  had  executed  the  purchase-deed,  or 
whetlier  its  directors  had  exceeded  their  powers  in  making  the  sale;  that 
where  a  purchaser  has  enjoyed  the  subject-matter  of  a  contract,  every  pre- 
sumption must  be  made  in  favor  of  its  validity;  and  that  if  all  the  proceed- 
ings on  the  part  of  the  directors  of  the  purchasing  company,  with  reference 
to  the  purchase,  had  not  been  in  strict  accordance  with  its  own  deed  of  settle- 
ment, still,  if  the  contract  with  the  other  company  was  the  means  of  the 
latter's  coming  into  existence,  the  former  could  not  act  in  contraventioa 
thereof. 

*  Chamberlain  v.  Painesville  &  Ilud.son  Railway  Co.,  15  Ohio  St.  22"). 

6  Waif.  Uailw.  71,  72;  Thames  Haven  Railroad  Co.  i'.  Rose.  4  Man.  &  G. 
552. 

8  In  re  Mohawk  &  Hudson  River  Railway  Co..  19  Wend.  135;  8.  c  2  Am. 
Railw.  Cas.  460. 

[•82] 


76  PROCEEDINGS   UNDER   THE   CHARTER.  [PART   II. 

tlic  cliartcr  of  the  company,  or  the  corporate  statutes,  contain  no 
directions  in  regard  to  assembling  the  body,  it  is  requisite  to  give 
due  legal  notice  to  each  member,  (a)  Accordingly,  when  by  the 
rules  of  a  friendly  society  the  power  of  electing  officers  was  vested 
in  a  committee  of  eleven,  at  a  meeting  of  the  committee,  where  ten 
of  the  members  were  present,  the  eleventh  not  having  received  no- 
tice, and  the  defendant  was  removed  from  the  office  of  treasurer, 
and  the  plaintiff  appointed  in  his  stead  by  a  majority  of  votes,  it 
was  held  that  the  election  was  void,  although  the  absent  committee- 
man had,  for  a  considerable  period,  absented  himself  from  the 
meetings,  and  intimated  an  intention  not  to  attend  any  more,  and 
although  the  defendant  himself  had  demanded  a  poll  at  the  elec- 
tion, and  was  now  objecting  to  its  validity.'  (ft) 

*  2.  But  an  adjourned  general  meeting  of  directors,  which  is 
provided  for  by  the  general  regulations  of  the  board,  and  is  for  the 
transaction  of  the  general  business  of  the  company,  requires  no 

1  Roberts  v.  Price,  4  C.  B.  231.  In  the  course  of  the  argument  in  this 
case,  Cresswkll,  J.,  referred  to  King  v.  Langhorn,  4  A.  &  E.  538,  and  in 
his  opinion  said  he  thought  that  case  "directly  applicable."  In  Smyth  v. 
Darley,  2  H.  L.  Cas.  789,  803,  it  is  said:  "  The  election  being  by  a  definite 
body,  on  a  day  of  which,  till  summons,  the  electors  had  no  notice,  they 
were  all  entitled  to  be  specially  summoned;  and  if  there  were  any  omission 
to  summon  any  of  them,  unless  they  all  happened  to  be  present,  or  unless 
those  not  summoned  were  beyond  summoning  distance, — as,  for  instance, 
abroad,  —  there  could  not  be  a  good  electoral  assembly;  and  even  an  unani- 
mous election  by  those  who  did  attend  would  be  void."  Infra,  §  211;  Great 
Western  Railway  Co.  v.  Rushout,  5  De  G.  &  S.  290 ;  s.  c.  10  Eng.  L.  & 
Eq.  72. 

{a)  Otherwise  the  majority  might  of  the  state,  unless  otherwise  provided 

in  effect  exclude  the  minority  from  by  the  charter.     See  Bellows  v.  Todd, 

participation  in  the  management  of  39  Iowa,  209;  Reicliwald  v.  Commer- 

the  affairs  of  the  company.     Herring-  cial  Hotel  Co.,  106  111.  439;  Ormsby 

ton  V.  Listen,  47  Iowa,  11;   Doyle  v.  V.Vermont   Copper   IMining   Co.,    56 

:Mizner,    42    Mich.    332 ;    Stoyestown  N".  Y.  632.     And  .see  Wood  Hydraulic 

Turnpike  Co.  v.  Graver,  45  Penn.  St.  IMining  Co.  v.  King.  45  Ga.  40.  where 

386.      But   if   a   quorum   be   present  it  is  said  that  as  the  authorities  are 

due  notice  to  all    will  be  presumed,  now  uniform  that  an  agent  of  the  cor- 

Chohan  Insurance   Co.  r.  Holmes,  68  poration  may  act  out  of  the  state,  and 

Mo.  601.  as    directors    are    but    agents,   there 

('')  The  weight  of  authority  seems  would  seem  to  be  no  reason  why  they 

to   support   the  proposition   that  the  should  not  so  act. 
directors  mav  hold  their  meetings  out 
[*83]" 


§  23.]  MEETINGS   OP   DIRECTORS.  77 

special  notice  of  cither  time  or  place,  or  of  the  business  to  be 
transacted.^ 

3.  But  where  the  charter  of  a  railway  provides  that  its  Ijusiucss 
shall  be  carried  on  under  the  management  of  twelve  directors,  to 
be  elected  in  a  particular  mode  pointed  out,  and  that  where 
vacancies  shall  occur  it  shall  be  lawful  for  the  remaining  directors 
to  lill  them,  it  was  held  that  this  provision  did  n(jt  require  that  the 
board  should  be  always  full ;  but  was  merely  directory,  as  to  the 
mode  of  lilling  vacancies.^ 

4.  Where  it  is  complained  that  tlie  existing  board  of  directors 
have  usurj)ed  their  places  in  violation  of  the  wishes  of  the  ma- 
jority of  the  shareholders,  the  question  should  be  referred  to  a 
meeting  of  such  shareholders,*  or  it  may  be  tried  ujxju  a  quo  war- 
ranto.^ 

5.  J3ut  in  practice,  in  this  country,  it  is  believed  that  most  of 
the  routine  business  of  railway  and  other  joint-stock  commercial 
companies  is  transacted  through  the  agency  of  sub-committees  of 
the  board  of  directors,  and  that,  where  the  voice  of  the  board  is 
taken  it  is  more  commonly  done  without  any  formal  assembly  of 
the  board.  And  long-established  usage  as  to  particular  com))anies, 
in  regard  to  the  mode  of  conducting  an  election,  has  been  held  of 
binding  force  in  regard  to  such  company.^  And  the  same  course 
of  reasoning  might  induce  courts  to  sanction  a  ])ractice,  which  had 
become  universal  from  its  great  convenience,  although  not  strictly 
in  accordance  with  the  principles  of  the  decided  cases  upon  analo- 
gous subjects,  or  the  results  of  a  priori  reasoning. 

G.  The  decision  of  a  majority  of  the  board  of  directors  is  usually 
*  regarded  as  binding  upon  the  company  ;  (c)  and  the  assembling 

2  Supra,  §  21.  Wills  r.  Murray,  4  Exch.  813.  But  see  Reg.  i*.  Grim.shaw, 
10  Q.  B.  747. 

=>  Thames  Haven  Dock  &  Railway  Co.  v.  Rose,  4  ^lan.  &  G.  552 ;  supra, 

§  21 ;  Wills  V.  IVlurray,  4  Exch.  843. 

4   Tnfra,  ^2U.  *  /«/m.  §  IGG. 

«  Attornev-Oeneral  v.  Daw,  cited  1  Ves.  Sen.  419.  It  would  savor  of  bad 
faith,  where 'the  business  of  the  company  has  been  transacted  ui  a  particular 
mode,  to  allow  the  company  to  repudiate  the  acts  of  its  ageiUs  because  iho 
transaction  has  proved  disadvantageous,  if  it  might  take  the  benefit  of  tlifui 
if  they  proved  successful. 

(c)  State  V.  Smith,  48  Yt.  2G6;  Mich.  53fi;  Doyle  r.  Mizner.  lb.  332; 
Baldwin  v.  Thunder  Bay  Boom  Co.,  42     Baldwin  v.  Canfield,  20  Minn.  43. 

[•84] 


78  PROCEEDINGS   UNDER   THE   CHARTER.  [PART   11. 

of  a  majority  will  be  treated  as  a  legal  quorum  for  the  transaction 
of  business,  unless  the  charter  or  by-laws  contain  some  specific  pro- 
vision upon  the  subject;"  and  notice  to  the  absent  directors  will  be 
presumed  unless  the  contrary  appears,  (d)  The  general  rule  upon 
this  subject  is,  that  the  act  of  a  majority  of  a  body  of  public  officers 
is  binding  ;  but  that  if  they  he  of  private  appointment,  all  must  act, 
and,  in  general,  all  must  concur,  unless  there  is  some  provision  to 
accept  the  decision  of  a  majority.  In  this  respect,  railway  direc- 
tors certainly  come  under  the  former  head.  The  proper  distinction 
upon  the  general  subject  seems  to  be,  that  where  the  matter  is  of 
public  concern,  and  of  an  executive  or  ministerial  character,  the 
act  of  the  majority  of  the  board  will  suffice,  although  the  others 
are  not  consulted.  But  where  the  function  is  judicial,  involving  a 
determination  of  some  definite  question,  the  whole  body  must  be 
assembled  and  act  together.  If  the  matter  is  of  public  concern, 
the  decision  of  a  majority  will  bind  ;  but  in  private  concerns,  as 
arbitrations,  all  must  concur.^  (e) 

'  Cram  v.  Bangor  House,  3  Fairf .  354 ;  Sargent  v.  Webster,  13  Met.  497 ; 
2  Kent  Cora.  293  and  notes;  King  v.  Whitaker,  9  B.  &  C.  648;  Common- 
■wealth  V.  Canal  Commissioners,  9  Watts,  466;  Ex  parte  Wilcocks,  7  Cow. 
402;  Field  v.  Field,  9  Wend.  394,  403,  where  it  is  held  that  any  number  of 
stockholders  are  a  quorum  if  the  others  are  properly  summoned.  But  as  to 
the  directors,  it  is  requisite  that  a  majority  attend.  2  Kent  Com.  293;  Cahill 
r.  Kalamazoo  Insurance  Co.,  2  Doug.  Mich.  124;  Holcomb  v.  New  Hope 
Delaware  Bridge  Co.,  1  Stock.  457. 

8  Green  v.  Miller,  6  Johns.  39;  King  v.  Great  Marlow,  2  East,  244;  Battye 
V.  Gresley,  8  East,  319;  Rex  v.  Coin  St.  Aldwins,  Bur.  Set.  Cas.  136;  King  i». 
Winwick,  8  T.  R.  454.  But  it  has  never  been  held  that  the  entire  board  of 
directors  must  assemble ;  it  is  enough  if  all  be  summoned,  and  a  majority 
attend.  See  note  7.  Edgerly  v.  Emerson,  3  Fost.  N.  H.  555.  If  the  doings 
of  directors  are  not  recorded,  they  may  be  proved  by  parol.  lb.  The  presi- 
dent has  a  right  to  vote  on  all  questions  to  be  determined  by  the  president  and 
directors.     McCullough  v.  Annapolis  &  Elk  Ridge  Railroad  Co.,  4  Gill,  58. 

The  records  of  the  clerk  of  a  railway  company,  of  the  proceedings  of  the 
directors  in  making  calls,  may  be  used  as  evidence  by  the  company  in  suits 
for  calls,  against  one  who  subscribed  for  shares  and  was  one  of  the  grantees 
of  the  charter  and  a  director  at  the  time  of  making  such  calls,  and  who  had 
exercised  the  rights  of  a  shareholder  from  the  first.    White  Mountains  Railroad 

(c/)  See  supra,  note  (n).  politan  Elevated  Railway  Co.  v.  Man- 

(c)  Minutes  of  the  action  of  a  di-     hattan  Railway  Co.,  15  Am.  &  Eng. 

rector  at  a  meeting  of  the  board  are     Railw.  Cas.  1. 

not  to  be  controlled  bv  parol.     Metro- 
[*84] 


§24.] 


QUALIFICATION    OF   DIRECTORS. 


79 


*  7.  But  where  the  authority  of  a  quorum  of  directors  is  required 
for  the  execution  of  a  bond,  it  must  be  given  at  a  formal  meetiu"-, 
whereat  the  members  of  the  quorum  arc  all  present  at  oncc.'-^ 


SECTION  VII. 


Qualification  of  Directors. 


1.  A  contractor  cannot  be  a  director. 

2.  Alitcr  of  the  company's  banker. 

3   Mortgaging    of   stock    does   not    dis- 
qualify. 


4.  Bankruptcy  will  not  vacate  office,  nor 

will  absence. 

5.  Company  compelled  to  fill  vacancies  in 

board. 


§  24.  1.  B}-  tlic  Companies'  Clauses  Consolidation  Act,^  (a)  it  is 
provided,  that  no  person  interested  in  any  contract  with  tlie  com- 
pany shall  be  a  director,  and  no  director  shall  be  capable  of  being 
interested  in  any  contract  with  the  company ;  and  if  any  director, 
subsequent  to  his  election,  shall  be  concerned  in  any  such  con- 
tract, the  office  of  director  shall  become  vacant,  and  he  shall  cease 
to  act  as  such.  Under  this  statute  it  was  held,  that,  if  a  director 
enters  into  a  contract  with  the  company,  the  contract  is  not  thereby 
rendered  void,  but  the  office  of  director  is  vacated.'^ 

Co.  V.  Eastman,  34  X.  II.  124.  As  to  the  effect  of  the  records  of  the  doings 
of  the  corporation,  kept  by  their  own  officer,  being  evidence  but  not  indi.sjien- 
sable  evidence  of  .sucli  facts,  when  proved  by  third  parties,  see  Hudson  r.  Car- 
man,  41  Me.  84;  Cotrui  v.  Collins,  17  Me.  440;  Teuob.scot  Railway  Co.  r.  'White. 
41  Me.  r)12.  See  also  Indianapolis  &  Cincinnati  Railroad  Co.  v.  Jewett,  1(5 
lud.  27:1. 

9  D'Arcy  r.  Tamar,  Kcthill,  &  Callingtou  Railway  Co.,  4  II.  &  C.  4G;J; 
8.  c.  12  Jur.  N.  8.  r)48. 

1  Stat.  8  &  9  Vict.  c.  16. 

«  Foster  v.  Oxford,  Worcester,  &  Wolverhampton  Railway  Co.,  13  C.  B.  200; 
s.  c.  14  Eng.  L.  &  Eq.  306.  This  case  is  discussed  in  a  later  case  in  the 
House  of  Lords.     Aberdeen  Railway  Co.  v.  Blakie,  1  Macq.  Ap.  Cas.  4G1. 


(a)  Unless  some  special  qualifica- 
tions are  required  by  the  charter,  any 
person  of  sound  mind  capable  of  act- 
ing as  agent  of  another  is  eligible  as 
a  director;  and,  unless  the  charter  pro- 
vides otherwise,  ownership  of  shares 


is  not  necessary.  See  In  re  St.  Law- 
rence Steamboat  Co.,  44  X.  J.  Law, 
529;  Stock's  Case,  33  Law  J.  CIj. 
731.  The  charter  usually  provides, 
however,  for  such  ownership. 

[•85] 


80  PROCEEDINGS   UNDER   THE   CHARTER.  [PART   II. 

2.  But  it  lias  been  held,  that  being  a  member  of  a  banking  com- 
j):iiiy,  wlio  were  the  bankers  and  treasurers  of  the  railway,  and 
who,  as  sucli,  received  and  gave  receipts  for  calls,  and  paid  checks 
drawn  by  the  directors,  will  not  disqualify  one  from  acting  as 
director,  but  that  this  clause  only  applied  to  such  contracts 
as  were  made  with  the  company  in  the  prosecution  of  its  enter- 
prise.^ 

3.  Where  the  qualification  of  a  director  consisted  in  owning  a 
certain  number  of  the  shares,  the  qualification  is  not  lost  by  a 
mortgage  of  the  shares.^ 

4.  Neither  the  bankruptcy  nor  absence  of  a  director,  and  volun- 
tarily *  ceasing  to  act  as  such,  will  put  an  end  to  his  character  of 
director,  unless  it  be  so  provided  in  the  deed  of  settlement.^ 

5.  If  shareholders  are  dissatisfied  with  the  board  of  directors  not 
being  full,  that  may  be  a  ground  of  applying  for  a  mandamus  to 
compel  the  company  to  complete  the  number.^ 

8  Sheffield,  Ashton-under-Lyne  &  Manchester  Railway  Co.  v.  Woodcock, 
7  M.  &  W.  574;  s.  c.  2  Railvv.  Cas.  522. 

*  Cumming  v.  Prescott,  2  Y.  &  Col.  Ex.  488. 

5  Phelps  V.  Lyle,  10  A.  &  E.  113.  But  if  one  abscond  from  his  creditors 
the  office  is  thereby  vacated.     Wilson  v.  Wilson,  6  Scott,  540. 

«  Thames  Haven  Dock  &  Railway  Co.  v.  Rose,  3  Railw.  Cas.  177;  s.  c. 
4  Man.  &  G.  552,  per  Maule,  J. ;  Mozley  v.  Alston,  1  Phillips,  790. 
[*86J 


§^5.] 


PREROGATIVE  FRANCHISES. 


81 


*CnAPTER  V. 


PREROGATIVE  FRANCHISES. 


1.  Control  of  internal  communication  in 

a  state  a  prerogative  franchise. 

2.  Grant  tliereof  confers  powers  pertain- 


ing exclusively  to  sovereignty,  as  tak- 
ing tolls,  and  tiie  right  of  eminent 
domain. 


§  25.  1.  Railways  possess  also  many  cxtraortlinary  powers  or 
franchises  wliicli  partake  more  or  less  of  the  quality  of  sovereignity, 
and  which  it  is  not  competent  for  the  legislature  even  to  delegate 
to  ordinary  corporations.  These  are  sometimes  called  the  pre- 
rogative franchises  of  the  corporation.  They  exist  in  banks, 
which  practically  supply  the  currency  of  the  country  or  its  repre- 
sentative, and  railways,  which  have  already  engrossed  the  chief 
business  of  internal  communication  in  this  country,  and  almost 
throughout  the  civilized  world.  And  both  currency  and  internal 
communication  between  different  portions  of  a  state  are  exclusively 
the  prerogatives  of  sovereignty. 

2.  In  saying  that  it  is  not  comjietent  for  the  legislature  to  con- 
fer prerogative  franchises  upon  all  eor])orations,  nothing  more  is 
intended  than  that  these  prerogative  franchises  do  not  appertain  to 
all  the  operations  of  business,  and  must  therefore  of  necessity  be 
limited  to  those  persons,  whether  natural  or  artificial,  which  an; 
occupied  in  matters  of  a  sovereign  or  prerogative  character,  and 
which  thus  render  an  equivalent  for  the  franchises  conferred.' 
This  subject  will  be  discussed  more  in  detail  under  the  titles  of 
Tolls  and  Eminent  Domain. 

^  State  V.  Boston,  Concord  &  ^Montreal  Railroad  Co..  2.")  Vt.  433;  s  r. 
1  Redf.  Am.  Railw.  Cas.  81.  The  rii^lit  to  luiilil  and  use  a  railway,  an<l  take 
tolls  or  fares,  is  a  franchise  of  the  prerogative  character,  wliich  no  jHirson  can 
legally  exercise  without  some  special  grant  from  the  legislature.  But  the  le- 
gislature may  confer  this  franchise  on  a  foreign  corporation,  .so  a.s  to  enable  it 
to  take  land  for  the  purpose  of  constructing  a  public  improvement  in  the  state. 
IMorris  Canal  &  Banking  Co.  i'.  Townsend,  '24  Barb.  6."i8.  And  what  title 
shall  be  acquired  by  such  foreign  corporation,  and  whether  the  proposed 
amendment  will  be  likely  to  prove  bencticial  to  the  citizens  of  the  state, 
is  a  question  solely  within  the  discretiou  of  the  legislature.     lb. 

TOL.  I.  — 6  L*^"] 


82 


BY-LAWS   AND   STATUTES. 


[PAET  II. 


*CnAPTER  YI. 


BY-LAWS   AND   STATUTES. 


SECTION    I. 


Power  of  Wicikinrj  By-Laws  or  Statutes. 


1.  May  make  by-laws  to  control  conduct 

of  passengers. 
n.  (a)  Or  any  reasonable  by-law  fit  to 
effectuate  objects  of  incorporation. 

2.  They   must    be    reasonable    and  not 

against  law. 

3.  Power   may    be    implied,    where   not 

express. 

4.  Bj-laws  need  not  be  in  any  particular 

form  unless  specially  required. 

5.  Usual  power  of  English  companies. 

6.  Model   code   of    by-laws    framed    by 

Board  of  Trade  in  England. 


7.  Company  may  demand  higher  fare  if 

paid  in  cars. 

8.  Public  statutes  control  by-laws. 

9.  Cannot     make     by-laws     subjecting 

shares  to  forfeiture. 
Cannot  refuse  to  be  responsible  for 

baggage. 
Statutes  operate  on  members  from 
promulgation  ;  on  others  from  no- 
tice of  the  same. 
12.  Regulations,  for  accommodation  of 
passengers,  must  yield  to  the  right 
of  others  to  be  carried. 


10 


11 


§  26.  1.  It  is  incident  to  every  corporation  to  enact  by-laws  or 
statutes  for  the  control  of  its  officers  and  agents,  and  to  regulate 
the  conduct  of  its  business  generally.  And  in  the  case  of  railways 
this  includes  the  regulation  of  the  conduct  of  passengers  and 
others  who  are  in  any  way  connected  with  them  in  business,  al- 
though not  their  agents. 

2.  This  power  is  subject  to  some  necessary  limitations.  Such 
by-laws  must  not  infringe  the  charter  of  the  company  or  the 
laws  of  the  state,  must  not  be  unreasonable,  and  must  be  within 
the  range  of  the  general  powers  of  the  corporation.^  (a)    And  the 

1  Elwood  V.  Bullock,  6  Q.  B.  383;  Calder  Navigation  Co.  v.  Pilling,  14 
M.  &  W.  76;  Child  v.  Hudson  Bay  Co.,  2  P.  Wms.  207;  Angell  &  Ames 
Corp.  §  10;  2  Kent  Com.  29G  ;  Davis  v.  Lowell  Meeting-House,  8  Met.  331. 

(a)  The  majority  have  implied  au-  ciation  v.  Lake,  69  Ala.  456.  All 
thority  to  make  any  by-law  which  is  by-laws  must  be  reasonable  and  con- 
reasonable  and  fit  to  effectuate  theob-  sistent  with  the  principles  of  the  law 
jects  of  incorporation.  Harrington  v.  of  the  land.  Kent  r.  Quicksilver  Min- 
Workingmen's  Benevolent  Associa-  ing  Co. ,  78  N.  Y.  182. 
tion,  70  Ga.  340;  Security  Loan  Asso- 

[*88] 


§  2G.]  POWER   OP   MAKING    BY-LAWS   OR    8TATUTKS.  83 

question,  whether  reasonable  or  not,  is  to  be  determined  bv  the 
jury  under  instructions  from  the  court,  being  a  mixed  (|ues- 
tion  of  law  and  fact.^  But  in  a  case  in  New  Jersey''  it  was 
decided  *  that  the  question  whether  the  regulation  of  a  corjiora- 
tion  affecting  third  })ersons  is  reasonable  is  a  question  of  fact  ; 
but  the  validity  of  a  by-law  of  a  corporation,  which  affects 
only  its  members,  is  a  question  of  law  to  be  determined  l)y  the 
court.  The  general  powers  of  business  corporations  to  enact 
by-laws  was  extensively  and  learnedly  discussed  in  a  somewhat 
recent  case  which  passed  through  the  Queen's  Bench,  the  Ex- 
cliei[uer  Chamber,  and  was  finally  determined  in  the  House  of 
Lords.*  The  case  turned  mainly  upon  the  reasonableness  of  the 
by-law,  which  excluded  any  person  who  had  become  bankrupt  or 
notoriously  insolvent  from  becoming  one  of  the  governing  body 
of  the  company.  The  provision  of  the  l)y-law  was  held  entirely 
reasonable  ;  but  that  having  admitted  the  party  to  the  ofliee,  he 
could  not  be  removed  Avithout  formal  jiroceeding  upon  notice 
and  hearing.  And  where  one  part  of  a  by-law  is  reasonable  it 
may  stand,  although  connected  with  another  part  which  is  not 
reasonable.^ 

3.  By-laws  in  violation  of  common  rights  are  void.*^  The  power 
to  make  by-laws  is  usually  given  in  express  terms  in  the  charter. 
And  where  such  power  to  make  by-laws  is  given  in  the  charter 
upon  certain  subjects  to  a  limited  extent,  this  has  been  regarded 
as  an  implied  prohibition  beyond  the  limits  expressed,  upon  the 
familiar  maxim,  Expressum  facit  cessare  taciturn? 

4.  By-laws,  unless  by  the  express  provisions  of  the  charter  or 
general  statutes  of  the  state,  are  not,  in  this  country,  reipiired  to 

In  a  case  in  Kentucky  it  is  said  the  power  of  a  corporation  to  make  by-laws 
is  limited  by  the  nature  of  the  corporation  and  tlie  laws  of  the  country.  It 
can  make  no  rule  contrary  to  law,  good  morals,  or  public  policy.  Sayre  v. 
Louisville  Union  Benevolent  Association,  1  Duvall,  143. 

-  Day  V.  Owen,  5  Mich.  520. 

^  Ayres  v.  Morris  &  Essex  Railway  Co.,  5  Diitcher,  393. 

*  Reg.  V.  Saddlers'  Company,  6  Jiir.  n.  s.  1113;  s.  c  7  Jur.  n.  s.  1.^8;  8.  c. 
9  Jur.  N.  s.  1081;  s.  c.  4  Best  &  S.  1059;  s.  c.  10  II.  L.  Ca.s.  104. 

^  Reg.  V.  Lundie,  8  Jur.  n.  s.  040. 

«  Ilayden  v.  Noyes,  5  Conn.  391;  Adley  v.  Whitstable  Co..  17  Vcs.  315; 
Clark's  Case,  5  Co.  64.  "When  the  penalty  of  a  by-law  is  imprisonment,  it  is 
void  as  against  Magna  Charta;  but  power  to  imprison  may  be  given  by  statute. 

7  Child  r.  Hudson  Bay  Co.,  2  P.  Wms.  207. 


84  BY-LAWS   AND   STATUTES.  [PART    II. 

be  enacted  or  promulgated  in  any  particular  form,  but  only  to  be 
enacted  at  some  legal  meeting  of  the  corporation.  But  in  England 
it  is  generally  considered  requisite  that  by-laws  be  made  under  the 
common  seal  of  the  corporation,  and  that  in  regard  to  railways, 
by-laws  affecting  those  who  arc  not  officers  or  servants  of  the  com- 
pany should  have  the  approval  of  the  Board  of  Trade  or  Railway 
Commissioners.^ 

6.  By  many  of  the  special  railway  charters  in  England,  and  by 
the  Companies'  Clauses  Consolidation  Act  of  1845,  it  is  provided 
*  that  railway  companies  may  make  by-laws  under  their  common 
seal  "  for  the  purpose  of  regulating  the  conduct  of  the  officers 
and  servants  of  the  company,  and  for  the  due  management  of  the 
affairs  of  the  company  in  all  respects  whatever."  And  they  have 
power  to  enforce  such  by-laws,  by  penalty,  and  by  imprisonment 
for  the  collection  of  such  penalty.  But  a  by-law  requiring  a 
passenger,  not  producing  or  delivering  up  his  ticket,  to  pay  fare 
from  the  place  of  the  departure  of  the  train,  was  held  not  to  be 
a  by-law  imposing  a  penalty,  and  therefore  not  justifying  the 
imprisonment  of  such  passenger.^ 

6.  The  statute  requires  a  copy  of  such  by-laws  to  be  furnished 
every  officer  and  servant  of  the  company,  liable  to  be  affected 
thereby.  The  code  of  by-laws  framed  by  the  Board  of  Trade  in 
England  for  the  regulation  of  travel  by  railway,  and  generally 
adopted  there,  is  certainly  very  judicious,  and  if  some  similar  one 
could  be  adopted  and  enforced  here,  it  would  accomplish  very 
much  towards  security,  sobriety,  and  comfort,  in  railway  travel- 
ling, and  tend  to  exempt  the  companies  from  much  annoyance 
and  very  often  from  loss.^*^ 

8  Waif.  Railw.  249 ;  Hodges  Railw.  552,  553. 

'  Chilton  ?'.  London  &  Croydon  Railway  Co.,  16  M.  &  W.  212;  s.  c.  5  Railw. 
Ca.s.  4.  Pakke,  B.,  there  says  :  "  This  is  not  the  case  of  a  penalty,  but  the 
mere  demand  of  a  fare.  Any  passenger  who  does  not,  at  the  end  of  his  jour- 
ney, produce  his  ticket,  may  have  broken  his  contract  with  the  company,  and 
be  liable  to  pay  his  full  fare  from  the  most  remote  terminus.  But  this  is  not 
a  penalty  or  forfeiture,  under  section  163,  pfiving  a  right  to  arrest  for  non- 
payment of  a  penalty  or  forfeiture."  See  also  the  opinion  of  Rolfe,  B.,  from 
which  it  appears  that  the  by-law  was  considered  valid. 

^°  See  Hodges  Railw.  453,  where  the  rules,  relating  to  the  purchase  of 
tickets  before  taking  seats  in  the  cars,  to  smoking  or  otherwise  inter- 
fering with  the  comfort  of  passengers,  injuring  cars,  &o.,  are  set  out  at 
large . 

[♦90] 


§  20.]  powi:r  op  making  by-laws  or  statutes.  85 

*  7.  In  a  case  in  Vermont,  it  was  held,  that  railway  conijianios 
liavc  tlie  j)()Wor  to  make  and  enforce  all  reasrjnable  rej^ulatiuns  in 
retrani  to  the  conduct  of  passengers,  and  to  discriminate  between 
lares  jiaid  in  the  cars  and  at  the  stations,  and  to  remove  all  jx-r- 
sons  fi'om  their  cars  who  persist  in  disregarding  such  regulations, 
in  a  reasonable  manner  and  jjropcr  place,  although  between 
stations. 

8.  But  this  may  be  controlled  as  to  existing  railways  even,  by 
general  legislation  of  the  state.  And  where  a  statute  gave  all 
railways  the  power  to  remove  from  their  cars,  at  the  regular  sta- 
tions^ those  who  violated  any  of  the  by-laws  or  regulations  of  the 
company,  this  was  held  to  carry  an  imj)lied  prohibition  from  remov- 
ing such  persons  at  other  points.^^  And  where  one  refuses  to  pay 
fare,  and  the  train  is  stopped  for  the  purpose  of  putting  him  off 
the  train,  at  a  dwelling-house,  as  by  the  statute  of  New  York  is 
*  allowed,  the  right  of  the  conductor  is  not  affected  by  a  subsc- 
(jucnt  offer  to  i)ay  fare.^^  So,  too,  one  may  be  ejected  from  the 
ears  by  the  conductor  for  disorderly  conduct,  and  in  justification, 
it  is  competent  to  prove  any  improper  conduct  during  the  entire 
passage,  and  this  cannot  be  controverted  by  general  evidence  of 
the  good  reputation  of  the  person  for  sobriety.  And  one  may 
be  exj)elled,  also,  for  refusing  to  surrender  his  ticket  to  the  con- 
tluctor  on  request,  in  conformity  with  the  general  regulations  of 
the  company. ^"^ 

0.  But  it  has  been  held,  that  a  general  power  to  make  by-laws 
for  the  regulation  of  the  use  of  a  canal,  will  not  justify  the  pro- 
prietors in  closing  the  navigation  of  the  canal  on  Sundays,'^  or  in 
making  by-laws,  subjecting  the  shares  to  forfeiture  for  non-pay- 

"  Stilpliin  V.  Smith,  29  Vt.  IGO;  Chicago,  Burlington  &  Qiiinoy  Uail- 
road  Co.  v.  Parks,  18  111.  4(50.  See  Ililiiard  v.  Goold,  \\\  N.  H.  SM),  in 
which  it  is  held  that  railways  may  lawfully  discriminate  between  fare 
paid  in  the  cars  and  fare  paid  at  the  stations.  See  infra,  §  *28,  note  17;  infra, 
§  160.  See  also  Chicago  &  Alton  Railroad  Co.  v.  Roberts,  40  111.  503;  Illinois 
Central  Railroad  Co.  v.  Sutton,  42  111.  4:)8;  Chicago  &  Northwostern  l^iilway 
Co.  r.  Peacock,  48  111.  253;  TarbuU  v.  Central  Pacific  Railroad  Co.,  34 
Cal.  016. 

12  People  V.  Jillson,  3  Parker  C  C.  231. 

"  People  V.  Caryl,  3  Parker  C.  C.  326. 

"  Calder  Nav.  Co.  v.  Pilling,  14  M.  &  AV.  76;  s.  c  3  Railw.  Cas.  73').  But 
it  is  questionable  whether  this  case  is  niaiutaiuable,  in  this  country,  on  any 
such  grounds. 

[♦01,  'O-:] 


86  BY-LAWS   AND   STATUTES.  [PART   II. 

mcnt  of  calls,  unless  that  power  is  expressly  given  by  the  charter 
or  by  statute. ^^ 

10.  And  a  by-law  declaring  that  the  company  would  not  be 
responsible  for  a  passenger's  baggage,  unless  booked  and  the 
carriage  paid,  is  bad,  as  inconsistent  with  the  general  law,  allow- 
ing railway  passengers  to  carry  a  certain  amount  and  kind  of 
baggage.  ^^ 

11.  The  members  of  a  joint-stock  company  are  affected  by  all 
binding  statutes  of  the  corporation  from  the  time  of  their  enact- 
ment, without  any  formal  notice  of  their  existence.  And  all  per- 
sons legally  affected  by  such  statutes,  rules,  or  by-laws  of  the 
corporation,  must  conform  to  their  requirements  from  the  time 
they  become  aware  of  their  existence.^''' 

12.  Regulations  as  to  the  accommodation  of  passengers  must 
yield  to  the  rights  of  others  to  be  carried,  and  the  accommodation 
of  passengers  during  the  transit  is  subject  to  such  general  rules 
*  and  regulations  as  the  company  see  fit  to  make,  provided  they 
are  reasonable,  and  whether  that  be  so  is  to  be  determined  by  the 
jury,  under  suitable  instruction  from  the  Court.  But  these  rules 
and  regulations  must  have  for  their  object  the  accommodation  of 
the  passengers  generally,  and  must  be  of  a  permanent  nature,  and 
not  made  for  a  particular  emergency  or  occasion. ^^ 

1^  In  re  Long  Island  Railroad  Co.,  19  Wend.  37;  s.  c  2  Am.  Railw.  Cas. 
453. 

^^  Williams  r.  Great  Western  Railway  Co.,  10  Exch.  15;  s.  c.  28  Eng.  L. 
&  Eq.  439.  But  it  seems  questionable  whether  the  principle  of  this  decision 
can  be  maintained.  It  seems  to  be  no  reasonable  abridgment  of  the  right  of 
a  passenger  to  carry  a  certain  weight  and  kind  of  baggage,  to  require  it  to 
be  booked  and  the  carriage  to  be  paid. 

1"  Woodfin  V.  Asheville  Mutual  Insurance  Co.,  6  Jones,  L.  N.  C.  558. 

18  Day  V.  Owen,  5  Mich.  520.  The  practice  in  America,  in  almost  all  modes 
of  passenger  transportation,  is  to  cram  the  carriages  to  the  point  of  suffocation, 
if  passengers  offer.  But  that  is  never  allowed  in  England  or  on  the  Continent. 
And  it  would  seem  that  a  passenger-carrier,  supplied  with  sufficient  accommo- 
dations for  all  who  ordinarily  offer,  had  better  be  excused  from  carrying  any 
excess  which  might  occasionally  offer,  than  be  compelled  to  carry  them  at  the 
expense  of  the  discomfort  and  suffering  of  all  the  other  passengers. 
[*93] 


§27.] 


BY-LAWS   REGULATING   STATIONS   AND   GROUNDS. 


87 


SECTION  II. 


By-Laws  regulathifj  the  use  of  stations  and  grounds. 


1.  May  exclude  persons  without  business. 

2.  May  regulate  the  conduct  of  others. 

3.  Superintendent  may  expel  for   viola- 

tion of  rules. 

4.  Probable  cause  will  justify. 

5.  In  civil  suit  must  prove  violation  of 

rules. 

6.  Regulation  of  stations  and  traffic  by 

means  of  injunction.     Equality  of 
charges. 


7.  Through  trains  will  not  be  required 

unless  reasonably  necessary  for  pub- 
lic accommodation. 

8.  Mode  of  enforcing  search  warrant* 

in  freight  stations. 

9.  The  right  of  railway  companies  to 

exclude  persons   liaving  no  busi- 
ness, from  their  stations. 
10.  Company   bound   to   maintain    plat- 
forms about  passenger  stations  in. 
safe  condition. 


§  27.  1.  Questions  have  sometimes  been  made,  in  regard  to  the 
right  of  railway  companies  to  exclude  persons  from  their  grounds 
who  had  no  business  to  transact  there  connected  with  the  com- 
pany, *  or  to  establish  regulations  or  by-laws  to  govern  the  conduct 
of  such  persons  as  had  occasion  to  come  there,  and  to  exclude 
others.  But,  upon  the  whole,  there  seems  little  ground  to  ques- 
tion the  right.^  (a) 

2.  A  railway  corporation  has  authority  to  make  and  carry  into 
effect  reasonable  regulations  for  the  conduct  of  all  persons  using 
the  railway,  or  resorting  to  its  depots,  without  jjre.scribing  such 
regulations  by  formal  by-laws  ;  and  the  sui)erintendent  of  a  rail- 
way station,  appointed  by  the  corporation,  has  the  same  authority 
by  delegation. 

1  Barker  v.  Midland  Railway  Co.,  18  C.  B.  46;  8.  c.  .36  Enjj.  L.  &  Eq.  253; 
Commonwealth  v.  Power,  7  Met.  590;  s.  c.  1  Am.  Railw.  Cas.  380;  Hall  r. 
Power,  12  Met.  482. 


(a)  Thus  it  has  been  held  that  a 
company  may  exclude  hotel  runners 
who  come  upon  the  platforms  of  the 
.station  to  solicit  patronage,  and  eject 
them,  using  no  more  force  than  may 
be  necessary  for  the  purpose.  Landri- 
gan  V.  State,  31  Ark.  50.  Or  hack- 
men,  expressmen,  peddlers,  or  "  loaf- 


ers." Summitt  v.  State.  8  Loa,  Tcnn. 
413.  And  that  any  one  not  there  for 
the  pur]iose  of  coming  or  going  by 
train,  while  not  a  trespasser,  may  be 
requested  to  leave,  and,  on  refusal, 
may  be  ejected.  Johnson  r.  Rt">ck 
Island  &  Pacific  Railroad  Co.,  51 
Iowa,  25. 

[*94] 


88  BY-LAWS   AND   STATUTES.  [PART   II. 

3.  Such  superintendent  may  exclude  from  the  stations  and 
grounds  persons  who  persist  in  violating  the  reasonable  regulations 
prescribed  for  their  conduct,  and  thereby  annoy  passengers,  or 
interru])t  the  officers  and  servants  of  the  company  in  the  discharge 
of  their  duty.  Thus,  where  the  entrance  of  innkeepers  and  their 
servants  into  a  railway  station  to  solicit  passengers,  to  go  to  their 
houses,  produces  such  effect,  they  may  be  excluded  from  coming 
within  the  station  ;  and  if,  after  notice  of  a  regulation  to  that 
effect,  they  attempt  to  violate  it,  and  after  notice  to  leave,  refuse 
to  do  so,  they  may  be  forcibly  expelled  by  the  servants  of  the 
company,  using  no  unnecessary  force. 

4.  And  where  an  innkeeper  had  been  accustomed  to  annoy  pas- 
sengers in  this  manner,  and  had  been  informed  by  the  superintend- 

,ent  of  the  station  that  he  must  do  so  no  more,  but  still  continued 
the  practice,  and  afterwards  obtained  a  ticket  for  a  passage  in  the 
cars,  with  the  bona  fide  intention  of  entering  the  cars  as  a  pas- 
senger, and  went  into  the  station  on  his  way  to  the  cars,  and  the 
superintendent,  believing  he  had  entered  for  his  usual  purpose, 
ordered  him  to  go  out,  and  he  did  not  exhibit  his  ticket,  nor  give 
notice  of  his  real  intention,  but  pushed  forward  towards  the  cars, 
and  the  superintendent  and  his  assistants  removed  him  from  the 
station,  using  no  unnecessary  force,  the  removal  was  held  justifi- 
able, and  not  an  indictable  offence.^ 

5.  But  the  superintendent  cannot  remove  a  person  from  the 
station  and  grounds  of  the  company,  merely  because  such  person, 
in  the  judgment  of  the  superintendent  and  without  proof  of  the 
fact,  violated  the  regulations  of  the  company,  or  conducted  himself 

*  offensively  towards  the  superintendent.^     And  it  was  said  if  such 
person  is  removed  for  an  alleged  violation  of  the  regulations  of 

*  the  company,  and  it  finally  is  shown  that  he  did  not  in  fact 

2  Commonwealth  v.  Power,  7  Met.  596;  Markham  v.  Brown,  8  N.  H. 
523. 

«  Hall  V.  Power,  12  Met.  482;  8.  c  1  Am.  Railw.  Cas.  440.  From  this  case 
and  Commonwealth  v.  Power,  7  Met.  596,  it  would  seem,  as  the  points  are 
stated,  that  as  to  justification  of  a  defendant  who  acted  in  good  faith  and 
upon  probable  cause,  the  court  distinguished  between  a  civil  suit  for  damages 
and  a  prosecution  for  assault  and  battery;  but  the  distinction  would  seem  to  be 
unwarranted  and  the  court  did  not  intend  to  make  it.  The  law  as  to  the  power 
of  the  superintendent  to  remove  persons  conducting  themselves  offensively  or 
in  a  way  to  interfere  with  persons  properly  at  the  station,  &c.,  is  well  stated 
by  Shaw,  C.  J.,  in  Commonwealth  v.  Power. 
[*95,  *9G] 


§  27.]  BY-LAWS   REGULATING    STATIONS   AND   GROUNDS.  89 

violate  any  of  sucli  regulations,  he  may  recover  damages  of  the 
sui)erintendent  of  the  station  by  vhusc  order  he  was  removed, 
notwithstanding  such  superintendent  acted  in  good  faith.  And 
in  such  case,  it  is  not  competent  to  show  that  the  plaintiff  had 
been  guilty  of  former  violations  of  other  regulations  of  the 
company. 

G.  Under  the  English  statute  of  17  ct  18  Vict.,  requiring  among 
other  things  that  the  Superior  Courts  of  Westminster  Hull  shall 
enforce  the  duty  of  railway  companies  in  regard  to  their  tralhc  in 
goods  and  passenger  transpoi-tation,  it  was  held  a  ])roper  ground 
for  granting  a  rule  to  show  cause  why  an  injunction  should  not 
issue,  that  at  one  of  the  stations  of  the  company,  where  an  impor- 
tant junction  with  other  roads  occurred,  no  covered  place  was 
provided  for  the  accommodation  of  the  passengers.  But  the 
English  Railway  Trafiic  Act  does  not  justify  the  courts  in  reijuir- 
ing  the  companies  to  make  the  same  charges,  or  to  afford  the  same 
facilities  in  regard  to  return  tickets  of  a  particular  class,  on  one 
of  their  branches,  which  they  do  upon  others.  To  constitute  in- 
equality of  charge,  it  must  be  for  passing  over  the  same  line,  or  the 
same  part  of  the  line.* 

*  7.  To  justify  the  courts  in  interfering  to  re(piire  the  com- 
l)anies  constituting  a  continuous  line  to  run  througli  trains,  it 
must  be  shown  that  public  convenience  requires  it,  and  tiiat 
it  can  reasonably  be  done.  And  they  will  not  interfere  in 
such  cases  where  there  is  another  route  where  through  tickets 
may  be  obtained,  although  somewhat  longer,  no  additional 
cost  or  serious  loss  of  time  being  thereby  incurred,  and  there 
being  no  general  complaint  of  public  inconvenience  on  that 
account.^ 

8.  A  railway  freight  station  or  warehouse  kept  by  a  railway 
company  for  the  storage  of  goods  transported  liy  them,  is  not 
exempt  from  the  process  of  search  warrant  under  the  statute 
against  the  keeping  and  sale  of  spirituous  liipiors  ;  nor  is  it  neces- 
sary that  such  warrant  should  be  executed  during  the  usual  busi- 
ness hours,  or  that  the  officer  should  consult  the  person  who  has 
charge  of  the  station.^ 

*  Caterham  Railway  Co.  v.  London  &  Brigliton  &  South  Coa-st  Kailway 
Co.,  40  Eng.  L.  &  Eq.'s.lO;  s.  c.  1  C.  B.  n.  s.  410. 

'  Barret  v.  Great  Northern  Railway  Co.,  1  C.  B.  N.  s.  423. 

*  Androscoggin  Railway  Co.  v.  Richards^  41  Me.  233. 

[•97] 


90  BY-LAWS  AND   STATUTES.  [PART  II. 

9.  The  Supreme  Court  of  Vermont"  (a)  decided  that  prima  facie 
railway  stations  were  open  to  all  ])ersons,  but  the  company  may 
revoke  such  implied  license  to  all,  and  exclude  all  except  such  as 
have  legitimate  business  there  growing  out  of  the  operation  of  the 
road  or  with  the  oflicers  or  employes  of  the  company.  They  may 
direct  all  others  to  leave  the  station,  and,  on  refusal,  may  remove 
them.  It  is  the  duty  of  such  persons  as  desire  to  remain  in  such 
stations,  for  the  purpose  of  taking  the  cars  or  for  any  other  lawful 
purpose,  to  make  known  the  same  to  the  officers  and  employes  of 
the  company  on  request.  And  if  such  is  the  regulation  of  the 
company,  one  purposing  to  become  a  passenger  may  be  required 
to  purchase  his  -ticket  in  order  to  remain  in  the  station.  This 
right  of  entering  the  station  to  take  the  cars  can  only  be  in  con- 
formity with  the  regulations  of  the  company,  and  within  a  reason- 
able time  only  before  the  departure  of  the  trains,  which  will  depend 
upon  the  particular  circumstances  of  each  case.  It  is  not  requisite 
the  person  should  enter  the  station  with  the  purpose  of  taking  pas- 
sage :  it  is  enough  that  he  entertains  the  purpose  at  the  time  he 
refuses  to  leave,  and  conducts  himself  in  other  respects  in  con- 
formity with  the  regulations  of  the  company. 

10.  As  to  such  persons  as  have  lawful  business  with  the  road 
and  just  occasion  to  come  upon  the  platforms  about  passenger 
stations,  including  passengers  and  those  who  come  to  see  them  off 
or  to  receive  them,  as  well  as  the  employes  of  the  company,  there 
is  a  duty  resting  upon  the  company  to  maintain  the  structure  in 
such  strength  as  to  support  all  who  may  thus  have  occasion  to  go 
upon  it.^  (J) 

'  Harris  v.  Stevens,  31  Vt.  79;  Gillis  v.  Pennsylvania  Railroad  Co.,  59  Penn. 
St.  129. 

8  Gillis  V.  Pennsylvania  Railroad  Co.,  59  Penn.  St.  129. 

(a)  And  see  supra,  note  (a).  (b)  See  infra,  §  192,  note  (a). 

[*97J 


§28.] 


DY-L.VWS   OR   RULES   AS   TO,  PASSENGERS. 


91 


♦SECTION  III. 
By-Laivs  or  Rules  as  to  Passengers. 


1.  By-laws  considered  as  statutes. 

2.  Considered  as  rules,  or  regulations. 

o.  Requiring   larger    fares     for    shorter 
distances. 

4.  Requiring  passengers  to  go  through  in 

same  train. 
n.  5.  Discussion  of  cases  in  point. 

5.  Arrest    of    passenger    by    company's 

servants. 

6.  How  far  company  responsible. 

7.  Company  liable  for  act  of  servant. 

8.  By-law  must  be  published. 

9.  Excluding   merchandise  from  passen- 

ger-trains. 


10.  Discrimination  between  fare  paid  in 
cars  and  fare  paid  at  stations. 

n.  (c)   Regulations  requiring  passen- 
gers to  buy  and  exhibit  tickets,  &c. 

Liability  for  excess  of  force. 

Officer  de  facto  may  enforce  rules  of 
company. 

Company  cannot  enforce  rule  against 
passenger,  when  itself  in  fault. 
14.  Consent  of  company  to  tariff  of  fares, 
iiow  presumed. 

Discrimination    on    the    ground    of 
color. 

liegulations  and  duties  of  street  rail- 
ways. 


15, 


IG 


§  28.  1.  A  distinction  is  sometimes  made  between  bv-laws  and 
orders  or  regulations,  the  former  being  supposed,  in  strictness 
of  language,  to  have  reference  exclusively  to  tlie  government  of 
their  own  members  and  of  their  corporate  ofliccrs.^  And  it  is 
true  that  such  other  ordinances  as  any  owner  of  the  buildings 
and  grounds  about  a  railway  station,  employed  in  carrying  pas- 
sengers, might  find  it  convenient  to  establish,  are  certainly  not 
what  is  ordinarily  understood  by  the  by-laws,  or  statutes,  of  the 
corporation. 

2.  But  in  the  English  cases  they  are  both  called  by-laws.^  Thus 
a  by-law,  that  each  passenger,  on  booking  his  place,  should  bo 
furnished  with  a  ticket,  to  be  delivered  up  before  leaving  the 
company's  premises,  and  that  each  passenger,  not  jtroducing  or 

1  Shaw,  C.  J.,  in  Commonwealth  v.  Power,  7  Met.  596,  GOl. 

2  Chilton  V.  London  &  Croydon  Railway  Co.,  16  ^L  &  W.  212  ;  8.  c.  5 
Railw.  Cas.  4.  It  would  seem  from  the  ojiiiiion  of  Parke,  B.,  that  the  by-law 
was  regarded  as  valid,  but  as  imperfect,  in  not  subjecting  the  passenger  to  a 
penalty  in  terms.  The  other  judges  doubted  whether  tlio  act  was  intended  to 
give  the  company  power  to  imprison  the  plaintiff,  or  any  one.  except  for  some 
offence  again.st  the  act.  But  all  seemed  to  concur  in  the  opinion  that  the  pas- 
.senger  was  bound  to  comply  with  the  regulation,  or  submit  to  tlie  alternative. 
State  V.  Overton,  4  Zab.  435;  Baltimore  &  Ohio  Railroad  Co.  v.  Blocher,  27 
Md.  277. 

[•98] 


92  BY-LAWS   AND   STATUTES.  [PART  II. 

delivering  up  his  ticket,  should  be  required  to  pay  faro  from  the 
})lace  wiicncc  the  train  originally  started,  was  held  not  to  be  a  by- 
law imposing  a  penalty .^  And  that  therefore  the  non-production 
of  the  ticket,  with  which  a  passenger  had  been  furnished,  and  his 
refusal  to  pay  fare  from  the  place  whence  the  train  started,  *  did 
not  justify  his  arrest,  but  only  rendered  him  liable  to  pay  fare 
from  the  place  whence  the  train  started. 

3.  But  in  an  English  case,^  where  the  company  had  made  a 
legal  by-law,  that  any  passenger  who  should  enter  a  carriage  of 
the  company,  without  first  having  paid  his  fare,  should  be  sub- 
jected to  a  penalty  not  exceeding  40s.,  a  passenger,  desiring  to  go 
to  Diss  station,  where  the  fare  was  7s.,  procured  a  ticket  for  Nor- 
wich, a  more  distant  station  on  the  line,  but  where  the  fare  was 
but  5s.,  in  consequence  of  competition,  and  entered  the  carriage 
accordingly,  and  at  Diss  offered  to  surrender  his  ticket,  but  refused 
to  pay  the  difference  in  fare ;  he  was  prosecuted  for  the  penalty, 
and  a  majority  of  the  Court  of  Queen's  Bench  held  he  was  not 
liable  on  the  ground  that  he  had  paid  his  fare  before  entering  the 
carriage.  Lord  Campbell  said, "  I  cautiously  abstain  from  express- 
ing any  opinion,  as  to  the  power  of  the  company  to  make  special 
regulations  or  by-laws,  so  as  to  enforce  larger  fares  for  shorter 
distances."  —  "  Had  not  Frere,  within  the  meaning  of  the  by-law, 
paid  his  fare,  before  he  entered  the  carriage  ?  I  think  he  had. 
He  had  paid  the  full  fare  from  Colchester  to  Norwich,  —  all  that 
was  required  of  him;  and  he  cannot  be  said  to  be  a  person 
who  had  entered  the  company's  carriage  without  payment  of 
fare."  * 

4.  It  had  been  held  that  a  regulation  requiring  passengers  to  go 
through,  in  the  same  train,  and  that  if  one  do  not,  requiring  fare 


8  Reg.  V.  Frere,  4  Ellis  &  B.  508;  s.  c.  29  Eng.  L.  &  Eq.  143. 

■*  But  the  argument  of  Lord  Campbell  on  this  point  does  not  seem  al- 
together satisfactory.  Whetlier  the  passenger  had  paid  his  fare  depended  on 
the  validity  of  the  by-law,  and  could  not  be  fairly  determined  on  any  other 
basis.  Frere  had  paid  fare  to  Norwich,  but  had  not  paid  fare  to  Diss,  unless 
the  by-law  was  void  ;  so  that  the  validity  of  the  by-law  did  seem  to  be  neces- 
sarily involved  in  the  decision.  And  the  decision  of  the  court,  although  not 
professing  to  do  .so,  did  virtually  disregard  it.  For  if  the  by-law  was  valid, 
Frere  had  no  more  paid  his  fare  than  if  he  had  taken  a  ticket  to  a  station  short 
of  his  destination.  And  if  the  by-law  meant  anything  sensible,  it  meant 
payment  of  fare  to  the  intended  destination. 
[*99] 


§  28.]  BY-LAWS   on   RULES    AS   TO    PASSENGERS.  98 

for  tho  remainder  of  the  route,  is  vulid.'^  (a)    *  And  where  the  ticket 
was  marked  "  good  only  two  days  after  date,"  it  was  held  to  he 

•^  Cheney  i\  Boston  &  Maine  Railway  Co.,  11  Met.  121;  see  2  Rcdf.  Am, 
Railw.  Cas.  447.  This  case  was  as  follows:  The  passenger  bought  a  ticket 
not  knowing  of  the  regulation.  The  conductor  told  him  and  offi-red  to  refund 
his  money,  deducting  a  sum  in  proportion  for  the  distance  already  travelled. 
The  passenger  refused,  and  demanded  his  ticket  in  exchange  for  the  conduc- 
tor's check,  marked  "  good  for  this  trip  only."  lie  stopped  by  the  way,  and 
went  on  the  same  day  in  tlie  next  train;  and  when  he  presented  the  check,  it 
was  refused,  and  tare  collected.  "J'he  court  held  that  he  could  not  recover  the 
money  of  the  company,  and  that  it  made  no  difference  that  he  was  not  aware 
of  the  regulation  at  tlie  time  he  purchased  his  ticket. 

This  subject  is  much  discussed  in  a  case  in  New  Jersey,  with  a  like 
conclusion.  It  is  there  said  that  the  company  may  discriminate  between 
way  and  through  fare,  unless  prohibited  by  law.  State  v.  Overton,  4  Zab. 
434.  The  same  rule  is  held  to  apply  to  excursion  tickets  sold  and  marked 
"  good  for  one  passage  on  this  day  oidy."  It  cannot  be  used  on  any  other 
day,  and  if  the  holder  refuse  to  pay  his  fare,  he  may  be  put  off  the  train,  and 
may  not  return  on  producing  a  regular  ticket.  State  v.  Campbell,  '6  Vroom, 
309.  In  Pier  v.  Finel,  21  Barb.  514,  where  a  person  was  put  off  for  refu.sal  to 
pay  fare,  having,  and  offering  to  the  conductor,  a  ticket,  dated  a  few  days  be- 
fore, and  marked  "good  for  this  trip  only,"  but  uncancelled,  —  it  was  held  that 
the  ticket  was  prima  facie  evidence  that  the  holder  had  paid  the  regular  fare, 
and  had  a  right  to  be  transported,  at  some  time,  on  some  passenger  train;  tliat 
the  presumption  was,  that  it  had  never  been  used ;  and  that  it  imjHjsod  on  the 
company  the  duty  to  so  transport  the  holder.  It  was  also  held  that  the  in- 
dorsement, "  good  for  this  trip  only,"  had  reference  to  no  particular  trip,  or 
any  particular  time,  but  only  to  some  one  continuous  trip.  This  decision  does 
not  seem  to  meet  the  whole  question  ;  that  is,  whether  such  a  regulation  was 
valid  and  binding.  There  can  be  no  doubt  that  such  a  ticket  is  generally  un- 
derstood to  entitle  the  holder  to  a  passage  only  on  that  day,  if  not  only  in  the 
very  next  train. 

It  seems  to  be  finally  settled  that  a  passenger  who  accepts  a  ticket,  or  check, 
marked  "good  for  this  day  and  train  only,"  has  no  right  to  leave  the  train,  at 
a  way  station,  and  demand  a  passage  on  another,  and  that  if  he  do  ."^o,  and  re- 
fuse  to  pay  the  fare  for  the  remainder  of  the  route,  the  conductor  may  lawfully 
j'ut  him  off  the  train.  See  ]McClure  v.  riiiladelphia,  Wihniiigton  .S:  Haltimore 
UaihaodCo.,  31  Md.  532.      Nor  has  the  ticket-master  at  a  way  station  any 

(n)  Cody  V.  Central  Pacific  Rail-  &  Western  Railroad  Co  ,  7  Hun.  t>70; 

road  Co.,  4  Sawyer,  114.     So  is  such  a  Hill  r.  Syracuse,  Binghnmton  &  New 

regulation  coupled  with  a  limitation  as  York    Railroad   Co.,   63   N.    Y.    101; 

to  time  for  which  the  ticket  shall  be  Powell  v.  Pittsburg,  Cincinnati  &  St. 

pood.  Livingstonr.Grand  Trutdv  Rail-  Louis  Railroad  Co.,  25  Oliio  St    70; 

way  Co.,  21  Lower  Canada  Jur.   13.  Grand  Trunk    Railway   Co.   v.    Cun- 

AndseeGalev.  Delaware,  Lackawanna  ningham,  11  Lower  Canada  .Tur.  1U7- 

[*100] 


94  BY-LAWS   AND    STATUTES.  [PART   II. 

evidence  of  a  contract  to  that  effect  between  *  the  railway  and  the 
purchaser,  and  to  be  of  no  force  after  the  expiration  of  the  term.*^  (b) 

authority  to  extend  a  conductor's  check.  lb.  But  the  conductor  may  give  a 
passenger  leave  to  stop  by  the  way,  while  riding  on  such  a  ticket,  and  by  in- 
dorsiii""  his  check  make  it  good  for  an  after  ti-ain.  And  where  tickets  for 
extended  routes  are  issued  in  coupons,  it  is  commonly  understood  that  the 
passenger  may  stop  at  the  end  of  any  of  the  sections  for  which  a  coupon  is 
issued,  and  complete  the  passage  at  any  time  within  reasonable  limits.  And 
the  same  rule  applies  to  season  tickets,  which  the  holder  is  in  terras  required 
to  present,  when  demanded.  If  the  holder  fail  to  present  the  ticket  when  de- 
manded, he  must  pay  fare  or  consent  to  be  put  off  the  train.  Downs  v.  New 
York  &  New  Haven  Railway  Co.,  36  Conn.  287.  And  it  was  here  held  to  be 
no  valid  excuse  for  not  presenting  the  ticket,  that  the  holder  had  accidentally 
left  it  at  home  and  therefore  had  it  not  in  his  power  to  present  it.  In  the  case 
of  Dietrich  v.  Pennsylvania  Railway  Co.,  29  Philad.  212,  it  was  held  that  rail- 
way companies  may  make  reasonable  rules  and  regulations  in  regard  to  passen- 
ger transportation,  binding  on  passengers  whether  known  to  them  or  not;  and 
therefore  that  a  drover's  ticket,  allowing  the  holder  to  ride  between  the  points 
named  in  a  continuous  passage,  without  stopping  at  intermediate  places,  can 
only  be  so  used. 

So,  also,  if  the  passenger  refuse  to  surrender  his  ticket  in  exchange  for  the 
conductor's  check,  according  to  the  regulations  of  the  company,  and  leave  the 
cars  at  any  point,  without  surrendering  his  ticket,  he  is  liable  to  pay  fare  for 
the  distance  he  has  ridden;  and  if  he  refuse  to  surrender  his  ticket,  or  pay  fare, 
the  conductor  may  expel  him  from  the  cars.  Northern  Railroad  Co.  v.  Page,  22 
Barb.  130.  But  passengers  are  not  obliged  to  surrender  their  tickets  without 
having  a  check  in  exchange  by  which  they  may  be  able  to  show  that  they  have 
paid  fare.  State  v.  Thompson,  20  N.  H.  250.  In  Ilibbard  v.  New  York  & 
Erie  Railway  Co.,  15  N.  Y.  455,  it  was  held,  that  a  regulation,  made  by  a 
railway  company,  requiring  passengers  to  exhibit  their  tickets  whenever  re- 
quested by  the  conductor,  and  directing  that  those  who  refused  be  expelled 
from  the  cars,  was  reasonable  and  valid;  and  that  the  binding  force  of  such  a 


«  Boston  &  Lowell  Railroad  Co.  v.  Proctor,  1  Allen,  267;  Shedd  v.  Troy  & 
Boston  Railroad  Co.,  40  Vt.  88.  The  same  doctrine  is  maintained  in  Johnson 
V.  Concord  Railroad  Co.,  46  N.  H.  213.  And  it  was  there  held  that  ignor- 
ance of  the  by-laws  or  regulations  of  the  company  will  make  no  difference; 
and  that  the  conductors  having  waived  them  is  no  evidence  of  repeal  unless 
known  to  the  governing  officers  of  the  company. 

(6)  So   a  ticket  dated    and   with  passage,  good  if  used  within  a  certain 

the  printed  words,  "  good  for  this  day  time,  is  good  if  the  passage  is  begun 

only,"  on  its  face,  was  held  not  good  within  the  time.      Lundy  v.   Central 

on  the  day  after  its  date.      Boice  v.  Pacific  Railroad  Co.,  18  Am.  &  Eng. 

Hudson  River  Railroad  Co.,  61  Barb.  Railw.  Cas.  309. 
611.     But  a  ticket  for  a  continuous 
[*]0t] 


§  28.]  BY-LAWS   OR   RULES    AS   TO    PASSENGERS.  i>;j 

And  where  the  regulations  of  the  *  company  allow  the  conductors, 
by  making  a  memorandum  on  a  ticket,  to  permit  the  passenger 
to  stay  over  and  pass  upon  another  train,  and  one  stayed  over 
without  ])rocuring  such  memorandum,  it  was  held  that  another 
conductor,  to  whom  he  presented  his  ticket  in  attemj)tiiig  to  pass 
at  a  subsequent  time,  was  justified  in  demanding  fare,  and  putting 
the  passenger  off  the  train  upon  his  refusal  to  i)ayJ 

5.  In  one  case,^  where  the  plaintiff,  upon  the  information  of  the 
station-clerk  that  he  might  return  at  a  given  hour  upon  an  excur- 
sion ticket,  purchased  such  ticket  and  took  the  train  named  by 
such  clerk  to  return,  but  the  train  did  not  pass  through ;  and  at 
the  •  place  where  it  stopped  the  station-clerk  demanded  2s.  Gd. 
more,  saying  he  should  not  have  taken  that  train ;  payment  being 
refused,  the  superintendent  took  the  plaintiff  into  custody.  The 
plaintiff's  attorney  having  written  the  secretary  of  the  company, 
asking  compensation,  he  requested  to  be  furnished  with  the  date 
of  the  transaction,  and  promised  to  make  inijuirics.     lie  also 

regulation  was  matter  of  law  to  be  decided  by  the  court.  And  it  was  further 
held  that  under  such  a  regulation,  a  passenger  was  bound,  on  request,  to  ex- 
hibit his  ticket  a  second  time,  the  train  having  in  the  mean  time  passed  a  station, 
but  that  if  the  conductor  knew  he  had  paid  his  fare  he  had  no  riglit  to  expel  him 
from  the  cars.  It  was  also  intimated,  that  a  passenger  who  has  thus  forfeited 
his  right,  cannot  regain  it  by  exhibiting  his  ticket  after  the  train  is  stopped 
for  the  purpose  of  putting  him  off;  and  also,  that  the  company  would  not  be 
liable  for  a  wrong  construction  of  the  regulation  by  the  conductor  and  the 
consequent  wrongful  expulsion  of  a  passenger,  nor  for  an  excess  of  force. 
Where  a  person  gives  up  his  ticket  to  the  conductor,  he  cannot,  at  an  inter- 
mediate station,  by  virtue  of  the  subsisting  contract,  leave  his  seat  in  the  train, 
and  claim  a  seat  in  another.  Cleveland  Railroad  Co.  i'.  Bartram,  11  Ohio 
St.  457. 

'  Beebe  v.  Ayres,  28  Barb.  275. 

8  Roe  V.  Birkenhead,  Lancashire,  &  Cheshire  Junction  Railway  Co.,  7 
Exoh.  3(1;  7  Eng.  L.  &  Eq.  51G;  s.  c.  G  Railw.  Cas.  795.  And  it  ha^  been 
held  that  a  steamboat  proprietor  might  exclude  one  from  his  boat.  whik>  cm- 
ployed  in  carrying  passengers,  if  such  person  was  the  agent  of  a  line  of  stages, 
the  rival  of  that  which,  by  contract,  carried  in  connection  with  his  boats,  the 
object  of  such  person  being,  at  the  time,  to  solicit  passengers  to  go  by  the  rival 
line  of  stages,  the  jury  having  found  tliat  the  contract  was  Ixmn  fule  and  rea- 
sonable, and  not  entered  into  for  the  purpose  of  an  oppressive  nionojKily,  and 
that  the  regulation  excluding  jtlaintiff  was  necessary  in  order  to  carry  the  con- 
tract into  effect.  Jencks  v.  Coleman,  2  Sumner,  221.  Ikit  a  contract  not  to 
carry  passengers  coming  by  a  particular  line  will  not  excuse  the  carrier  from 
carrying  such  passenger.     Bennet  v.  Dutton,  10  N.  H.  481. 

[*102] 


96  BY-LAWS    AND   STATUTES.  [PART   II. 

stated  verbally  that  it  was  an  awkward  business,  and  the  blame 
would  fall  u{)ou  the  station-clerk  who  gave  the  plaintiff  the  false 
information,  and  oiTcrcd  to  return  the  2s.  6c?.  It  was  held  that, 
as  there  was  no  evidence  of  the  authority  of  the  defendants  to 
make  the  arrest,  and  none  that  they  liad  expressly  or  impliedly 
authorized  or  ratified  it,  it  must  be  regarded  as  the  mere  tortious 
act  of  the  servant,  for  which  he  alone  was  responsible. 

6.  And  in  a  somewhat  similar  case,^  in  the  Exchequer  Chamber, 
*  where  the  plaintiff  below  had  been  taken  into  custody  by  a  rail- 
way inspector  of  the  defendants,  charged  with  having  no  ticket, 
refusing  to  pay  fare,  intoxication,  and  assaulting  the  inspector;  at 
the  hearing  before  the  magistrate,  the  solicitor  of  the  company 
attended  to  conduct  the  proceedings ;  and  it  was  held  that  such 
attendance  was  no  ratification  by  the  company,  it  not  appearing 
that  the  facts  were  known  to  the  company.  These  cases  afford 
more  latitude  for  corporations  to  escape  from  liability  for  the  acts 
of  their  agents  and  servants,  while  employed  in  the  prosecution  of 
their  business,  than  is  commonly  allowed  in  this  country .^'^ 

7.  There  are  many  cases  in  this  country  where  it  has  been  held 
that  trespass  will  not  lie  against  a  corporation  for  the  act  of  its 
agents  ;^i  but  this  is  not  the  prevailing  rule  here,  where  the  ser- 
vant acts  within  the  apparent  scope  of  his  authority,  and  where 
his  acts  would  bind  the  principal,  being  a  natural  person. 

8.  An  English  railway  company  ^  having  power  by  statute  to 

^  The  Eastern  Counties  Railway  Co.  v.  Broom,  6  Exch.  314;  2  Eng.  L.  & 
Eq.  40G;  s.  c.  6  Railw.  Cas.  743. 

1°  Infra,  §  225  and  notes.  See,  also,  infra,  §§  169,  182.  And  in  Coppin  v. 
Braithwaite,  8  Jur.  875,  it  is  said  to  have  been  ruled  by  Rolfe,  B.,  at  Nisi 
Prius,  that  a  carrier  having  received  a  pickpocket  as  a  passenger  on  board  his 
vessel,  and  taken  his  fare,  cannot  put  him  on  shore  at  any  intermediate  place, 
so  long  as  he  is  guilty  of  no  impropriety. 

"  Philadelphia,  Germantown,  &  Xorristown  Railroad  Co.  v.  Wilt,  4  Whart. 
143;  s.  c.  2  Am.  Railw.  Cas.  254;  Oit  v.  United  States  Bank,  1  Ohio,  30; 
Foote  V.  Cincinnati,  9  Ohio,  31.  Comstock  and  Browx,  JJ.,  in  Hibbard  v. 
New  York  &  Erie  Railway  Co.,  15  N.  Y.  455.  The  company  is  responsible 
for  the  act  of  its  conductors  in  forcibly  ejecting  a  passenger  from  the  cars  on 
the  ground  "that  he  was  drunk,  when  in  fact  he  is  sober,  Iliggins  v.  Water- 
vliet  Railroad  Co.,  4G  N.  Y.  23. 

"  Great  Western  Railway  Co.  v.  Goodman,  11  Eiig.  L.  &  Eq.  546.  In  Ed- 
wards V.  London  &  North  Western  Railway  Co.,  Law  Rep.  5  C.  P.  445,  it 
was  held,  that  the  head  porter,  having  charge  of  the  station  in  the  absence  of 
the  station  master,  has  no  implied  authority  to  give  in  charge  to  a  peace  officer 

[*103] 


§  28.]  BY-LAWS   OR   RULES   AS   TO    PASSENGERS.  97 

make  by-laws,  which  were  to  be  painted  upon  a  board  and  hunj^ 
up  at  the  stations,  and  to  be  bindinj^  upon  all  parties,  made, 
among  others,  a  by-law  that  "  first-class  fjassengcrs  shall  be 
allowed  one  hundred  and  twelve  pounds,  and  second-class  j)a8- 
sengers  fil'ty-six  pounds  luggage  each,  and  that  the  company  will 
not  be  responsible  for  the  care  of  the  same  unless  booked  and 
paid  for  accordingly."  It  did  not  appear  that  the  plaintifT  knew 
of  the  by-law,  or  that  it  had  been  jjostcd  up  as  rcfpiired.  'J'lie 
jilaintiff  became  a  passenger,  and  gave  his  luggage  to  the  servants 
of  the  company,  and  it  had  been  stolen.  It  was  held  that  the 
com{)any  were  liable,  unless  they  showed  the  by-law  hung  up  at 
the  stations,  as  required  by  the  statute,  or  else  brought  it  home  to 
the  knowledge  of  the  jjlaintiff. 

9.  A  by-law  excluding  merchandise  from  the  passenger-trains, 
and  confining  its  transportation  to  the  freight-trains,  was  lield 
*  reasonable.  The  company  are  not  bound  to  carry  a  passenger 
daily  upon  his  paying  fare,  when  his  trunk  or  trunks  contain  mer- 
chandise, money,  and  other  valuable  matter  known  as  "  express 
matter."  ^^ 

10.  Tn  a  case  in  Connecticut,  it  was  held  by  a  divided  court, 
that  where  a  railway  company  established  and  gave  notice  of  a 
discrimination  of  five  cents  between  fares  ])aid  in  the  cars  and  at 
the  stations,  the  regulation  was  valid,  and  that  where  a  passenger 
refused  to  pay  the  additional  five  cents  in  the  cars,  the  conductor 
might  lawfully  put  him  out  of  the  cars,  using  no  unnecessary 
force. ^*  (6')     Upon  the  trial  of  an  action  for  such  expulsion,  it  was 

one  whom  he  suspects  of  stealing  the  company's  property,  and  that  if  he  give 
in  charge  one  who  is  innocent  tlie  company  will  not  be  responsible.  As  to  tlio 
autliority  of  special  constables  in  the  employ  of  railway  companies  in  making 
arrests,  and  what  will  amount  to  probable  cause,  see  Walker  v.  iSoulh  Eastern 
Railway  Co.,  Law  Hop.  5  C.  P.  GtO. 

^^  Merrilicw  v.  IMilwaukee  &  jMi.ssissippi  Railroad  Co.,  5  Am.  Law  Reg.  364. 

"  Crocker  v.  New  London,  Willimantic  &  Palmer  Railroad  Co.,  21  Coim. 
249.  The  court  were  so  nearly  equally  divided  in  this  case,  that  it  cannot  bo 
regarded  as  of  much  authority.  But  the  proposition  is  supported  by  other 
cases.  Hilliard  r.  Goold,  3i  N.  U.  2;i0  ;  State  i-.  C.oold,  5:5  Me.  27f);  Chi- 
cago, Rurliiigton  &  Qniney  Railroad  Co.  r.  Parks,  18  III.  400.  And  the  last 
named  of  these  cases  holds  that  where  the  pas.'^enger  pays  from  station  to  sta- 

(c)  Wilsey  v.  Louisville  &  Nash-  entitling  the  pa«.<;enger  to  a  di.scount 

ville  Railroad   Co.,  26  Am.   &   Eng.  from  the  advertised  rates  where  he  pur- 

Railw.  Cas.  258.     So  of  a  regulation  chases  a  ticket.     Nor  doe?  it  viulata 
VOL.  I. -7  [•104] 


98 


DY-LAWS   AND    STATUTES. 


[part  II. 


held,  that  the  plaintiff  was  not  entitled  to  recover  upon  proof 
that  he  went  to  the  ticket-office  of  the  company  a  reasonable  time 
before  the  train  left,  to  procure  a  ticket;  that  the  office  was 
closed,  and  so  remained  till  the  train  departed ;  and  that  he  so 
informed  the  conductor,  before  his  expulsion  from  the  cars. 

tion,  the  additional  five  cents  may  be  exacted  at  eacli  payment.  And  the 
passenger  is  bound  by  such  regulation  whether  he  knew  of  it  or  not.  State 
V.  Goold,  supra;  Chicago  &  Alton  Railroad  Co.  i'.  Roberts,  40  111.  503  ;  Illi- 
nois Central  Railroad  Co.  v.  Sutton,  42  111.  438;  Chicago  &  Northwestern 
Railway  Co.  v.  Peacock,  48  111.  253;  infra,  §  124,  pi.  13. 

The  only  point  of  doubt  seems  to  be  as  to  the  duty  of  the  company,  in  mak- 
ing such  discrimination,  to  give  passengers  reasonable  opportunity  to  obtain 
tickets  at  tlie  lowest  rate  of  fare.  The  generally  received  opinion  is  that  the 
company  is  so  bound.     See  infra,  note  15. 


a  statute  providing  that  the  rates  of 
fare  shall  be  the  same  for  all  persons 
between  the  same  points.  Swan  v. 
Manchester  &  Lawrence  Railroad  Co., 
132  Mass.  116;  Hoffbauer  v.  Daven- 
port &  Northwestern  Railway  Co.,  52 
Iowa,  342;  Bordeaux  v.  Erie  Railway 
Co.,  8  Hun,  579. 

A  rule  iirohibiting  riding  on  freight 
trains  without  tickets  is  reasonable 
and  valid.  St.  Louis  &  Southeastern 
Railway  Co.  v.  Myrtle,  51  Ind.  5GG; 
Falkner  v.  Ohio  &  Mississippi  Rail- 
way Co.,  55  Ind.  309;  Lake  Shore  & 
Michigan  Southern  Railway  Co.  v. 
Greenwood,  79  Penn.  St.  373;  India- 
napolis &  St.  Louis  Railroad  Co.  v. 
Kennedy,  77  Ind.  507;  Law  v.  Illi- 
nois Central  Railroad  Co.,  32  Iowa, 
531.  But  reasonable  facilities  must 
be  provided  for  the  obtaining  of  tick- 
ets. Evans  v.  Memphis  &  Charleston 
Railroad  Co  ,  56  Ala.  246. 

A  regulation,  that  passengers  not 
showing  tickets  should  be  charged  fare 
from  the  station  from  which  the  train 
started,  held  unreasonable  as  against 
a  traveller  acting  in  good  faith,  and 
void.  London  &  Brighton  Railway 
Co.  p.  Watson,  Law  Rep.  3  C.  P. 
429. 

[*105] 


A  regulation  requiring  passengers 
to  show  season  tickets  is  a  reason- 
able one.  Cresson  v.  Philadelphia  & 
Reading  Railroad  Co.,  11  Phila.  597; 
and  see  Cooper  v.  London,  Brighton  & 
South  Coast  Railway  Co.,  Law  Rep.  4 
Exch.  88. 

So  is  the  regulation  requiring  pas- 
senger stopping  over  to  get  a  stop-over 
check.  Yorton  v.  Milwaukee,  Lake 
Shore  &  Western  Railway  Co.,  54 
Wis.  234.  And  see  Lake  Shore  & 
Michigan  Southern  Railway  Co.  v. 
Pierce,  47  Mich.  277.  So  is  a  regula- 
tion limiting  stop-over  checks.  AVentz 
V.  Erie  Railway  Co.,  3  Hun,  241.  So 
is  a  regulation  requiring  excursionists 
to  go  by  the  excursion  train.  McRae 
V.  Wilmington  &  Weldon  Railroad  Co., 
88  N.  C.  526.  And  so  is  a  regulation 
requiring  the  conductor  to  detach  the 
ticket.  Norfolk  &  Western  Rail- 
road Co.  V.  Wysor,  26  Am.  &  Eng. 
Railw.  Cas.  234.  But  rules  of  a  com- 
pany that  a  certain  ticket  shall  be 
good  only  on  certain  trains  are  not 
irrebuttably  presumed  to  be  known  to 
the  passenger  when  not  on  the  ticket. 
Lake  Shore  &  Michigan  Southern 
Railroad  Co.  v.  Rosenzweig,  26  Am. 
&  Eng.  Railw.  Cas.  489. 


§  28.]  BY-LAWS   OR   RULES   AS   TO    PASSENGERS.  00 

Tho  followinc^  propositions  arc  maintained  in  tlio  opinion  of  tlie 
conrt:  (1)  That  the  defendants,  as  common  carriers,  were  under 
no  lej2:al  obligation  to  furnish  tickets,  or  to  carry  passengers  for 
less  than  the  sum  demanded,  if  the  fare  was  jiaid  in  the  cars. 
*  (2)  That  the  plaintiff's  claim  rested  solely  upon  the  assumj)- 
tion,  that  the  defendants  had  undertaken  to  carry  for  the  less  sum, 
on  certain  conditions,  which  they  had  themselves  defeated.  (3) 
That  the  regulation  did  not  constitute  a  contract,  but  a  mere  pro- 
posal, which  they  might  suspend,  or  withdraw  at  any  time.  (4) 
That  such  proposal  was  withdrawn  by  closing  the  defendants' 
office,  and  the  retirement  of  their  agent  therefrom.  (5)  That 
the  proposition  being  withdrawn,  the  parties  were  in  the  same 
condition  as  before  it  was  made ;  the  defendants  continuing  com- 
mon carriers  were  bound  to  carry  the  plaintiff  for  the  usual  fare 
paid  in  the  cars,  and  not  otherwise.  (G)  That  the  plaintiff,  re- 
fusing to  pay  such  fare,  was  properly  removed  from  the  cars. 

It  was  further  held  by  all  the  judges  that  if  the  plaintiff  was 
wrongfully  removed  from  the  cars,  he  might  lawfully  re-enter 
them,  and  if  in  attempting  to  do  so  he  received  the  injury  com- 
plained of,  he  was  entitled  to  recover,  unless  he  was  himself  guilty 
of  some  want  of  care,  which  produced,  or  essentially  contributed 
to  produce,  the  injury. 

But  if  the  expulsion  was  lawful,  or  if  the  plaintiff  was  guilty  of 
want  of  care  as  stated,  he  could  not  recover. 

The  majority  of  the  couit  also  held,  that  if  any  of  the  defend- 
ants' employes  whom  the  conductor  called  to  his  aid,  in  putting 
and  keei)ing  the  plaintiff  off  the  cars,  intentionally  kicked  the 
plaintiff  in  his  face,  without  the  knowledge  or  direction  of  the 
conductor,  the  defendants  are  not  liable  for  the  act,  in  trespass. 
Hut  the  more  reasonable  view  in  regard  to  the  mode  of  enforcing 
a  discrimination  between  fares  paid  in  the  cars  and  at  the  stations 
is,  that  such  a  regulation,  however  proper  in  itself,  cannot  legally 
be  enforced  by  the  company  unless  they  have  afforded  every 
firoper  and  reasonable  facility  to  the  passenger  for  {irocuring  his 
ticket  at  the  station. ^^ 

"  St.  Louis,  Alton,  &  Cliicago  Railroad  Co.  v.  Dalhy,  19  UK  35.3;  Chicaj^o, 
Burlington,  &  Quincy  Railroad  Co.  v.  Parks,  18  III.  4U0.  In  St.  Louis,  Alton, 
&  Terre  Haute  Railroad  Co.  v.  South,  43  111.  17G,  it  was  held  that  the  cases 
were  not  to  be  construed,  as  requiring  companies  to  keep  open  their  ticket 
oilices,  beyond  the  time  fixed  bv  their  tinie-tubles  for  tho  departure  of  .-»  train, 

[nooj 


100  BY-LAWS   AND    STATUTES.  [PART   II. 

*  11.  There  is  no  question,  upon  general  principles,  in  an  action 
or  indictment  against  the  conductor  of  a  railway  train  lor  unlaw- 
fully expelling  a  passenger,  where  the  evidence  shows  a  right  to 
make  the  expulsion,  that  the  conductor  may  nevertheless  become 
liable  for  the  manner  of  doing  it.  This  is  a  question  to  be  deter- 
mined by  the  jury,  and  cannot  ordinarily  be  decided  by  the  court, 
as  matter  of  law.  If  there  be  an  excess  of  force,  or  it  be  applied 
in  an  unreasonable  and  improper  manner,  the  conductor  is  lial)le 
for  such  excess,  to  respond  in  damages  to  the  party,  and  also  to 
public  prosecution  for  a  breach  of  the  peace.^^ 

12.  The  authority  of  the  conductor  of  a  railway  train,  or  of  any 
other  servant  of  the  company,  to  enforce  their  regulations,  does 
not  depend  upon  the  formal  mode  of  his  appointment,  but  upon 
the  fact  of  his  being  employed  at  the  time  in  the  particular 
office.i*^ 

13.  In  an  English  case,^'^  where  the  railway  company  had  es- 
tablished a  by-law  requiring  all  passengers  to  purchase  tickets 
before  entering  the  cars,  and  to  show  the  tickets  when  required  so 
to  do,  and  to  deliver  them  up  on  request,  before  leaving  the  com- 
pany's premises,  and  the  plaintiff  took  tickets  for  himself  and  three 
boys  and  three  horses,  by  a  certain  train,  which  was  afterwards 
divided  by  the  company's  servants  into  two  parts,  one  being  com- 
posed of  passenger  carriages,  and  the  other  of  horse  boxes ;  and 
the  plaintiff  retained  all  the  tickets  and  travelled  by  the  first- 

but  only  for  a  reasonable  time  before  the  time  so  fixed;  that  they  must  fur- 
nish a  convenient  and  accessible  place  for  the  sale  of  tickets,  and  afford  the 
public  a  reasonable  opportunity  to  purchase  them;  and  that  parties  who  did 
not  avail  themselves  of  the  opportunity,  must  submit  to  pay  the  extra  fare 
required  by  the  general  regulations  of  the  company,  or  on  refusal  might  be 
expelled  from  the  cars.  It  was  also  held  that  the  rule  giving  companies  the 
riglit  to  discriminate  between  fares  paid  in  the  cars,  and  at  the  stations, 
required  them,  very  properly,  to  give  a  reasonable  opportunity  for  procuring 
tickets  at  the  lower  rate.  The  same  rule  is  maintained  in  Du  Latirans  v. 
Tacific  Railroad  Co.,  15  Minn.  49.  And  it  was  there  said  that  what  is  a 
reasonable  opportunity  is  a  question  for  the  jury. 

16  Hilliard  v.  Goold,  34  N.  H.  230;  State  v.  Ross,  2  Dutcher,  224.  In  the 
latter  case  where  it  appeared  that  the  conductor  kicked  a  passenger  who,  in  a 
state  of  intoxication,  persisted  iu  attempting  to  get  on  the  train,  the  court 
held  a  conviction  proper.  So,  too,  where  the  conductor  put  one  off  the  train 
■while  it  was  in  motion,  the  act  of  the  conductor  was  held  to  bind  the  company 
for  damages.     Kline  v.  Central  Pacific  Railroad  Co.,  37  Cal.  400. 

"  Jenniucrs  r.  Great  Western  Railway  Co.,  12  Jur.  n.  s.  331. 
[*106] 


§   28.]  BY-LAWS    OR    RULES    AS    TO    PASSENGERS.  lUl 

mentioned  portion  of  the  train,  so  tliat  tlie  boys,  who  were  h.ft 
to  go  in  the  other  portion  of  the  train,  were  unable  to  produce 
their  tickets  wlien  requested,  and  were  accordingly  excluded  bv 
the  company's  servants  from  entering  the  horse  boxes,  —  it  was 
held  a  breach  of  contract  by  the  company,  for  which  they  were 
responsible. 

*  14.  A  tariff  of  fares  or  freight  must  have  the  sanction  of  the 
corporation  to  become  of  binding  obligation.  But  if  established 
by  the  president, and  the  business  of  the  company  transacted  with 
reference  to  them,  without  objection,  the  consent  of  the  company 
will  be  presumcd.^^ 

15.  There  has  been  considerable  controversy  in  the  country,  how 
far  railway  companies  have  the  legal  right  to  require  colored  pas- 
sengers to  sit  in  a  particular  car,  or  portions  of  the  car.  That 
right  was  maintained  by  the  Supreme  Court  of  Pennsylvania. i** 
But  it  has  been  denied  in  other  courts.  The  recent  amendments 
of  the  United  States  Constitution  have  been  supposed  by  some  to 
settle  this  question.  There  seems  to  be  no  sufficient  reason  why 
any  such  discrimination  should  now  be  made,  and  when  the  un- 
fortunate animosities  growing  out  of  the  former  existence  of  slav- 
ery in  the  country  shall  have  effectually  subsided,  it  is  to  be  hoped 
that  any  such  questions  will  cease  to  be  raised.  Persons  of  the 
highest  culture  and  refinement,  as  a  general  thing,  feel  less  sensi- 
tive on  this  subject  than  others,  and  their  example  will  constantly 
tend  to  lead  others  in  the  right  path.  {J) 

"  Westchester  Railroad  Co.  v.  Miles,  55  Tenn.  St.  209. 

((I)    See   Central   Railroad    Co.   v.  comfort,  order,  and  safety  of  passen- 

Green,  80  Penn.  4'21,  427.     P"'or  rul-  gers,   a  company   may   make   a   rule 

ings  under  the  Civil  Rights  acts,  see  setting  apart  cars  for  the  exclusive  use 

Gray  v.  Cincinnati  Southern  Railroad  of  ladies  and  gentlemen  accompanied 

Co.,  11  Fed.  Rep.  683,  asserting  the  by  ladies.     Chicago  &   Northwestern 

equal  rights  of  colored  persons,  and  Railway  Co.  v.  Williams,  55  111.  185. 

Smoot  V.  Kentucky  Central   Railway  And  it  would  seem  that  though  in  tho 

Co.,  1:5  Fed.  Rep.  3:57,   holding  that  absence  of  rule  a  company  might  not 

Congress  has  no  power  to  protect  such  lawfully  from  caprice  or  prejudice  ex- 

a  right,  —  the  right  of  a  colored  woman  elude  a  colored  woman  from  a  partic- 

to  ride  in  the  ladies'  car.      And  see  ular  car,  it  might  reasonably  make  a 

Cully  V.   Baltimore  &  Ohio  Railroad  rule  requiring  colored  jwople  to  occupy 

Co.,  1  Hughes,  536.    It  seems,  however,  separate   seats  in  other  care   equally 

that  under   its    undoubted   power   to  safe  and  comfortable.    lb.  Equality  of 

make  reasonable  rules  tending  to  the  accommodation  does  not  mean  identity 

*[107] 


102  BY-LAWS    AND    STATUTES.  [PART   II. 

16.  A  regulation  of  a  street-railway  company  requiring  passen- 
gers to  enter  and  leave  the  cars  by  the  rear  platform  is  highly  just 
and  reasonable ;  and  a  passenger  who  suffers  injury  from  the 
needless  violation  of  such  regulation  has  no  claim  for  compensa- 
tion against  the  company,  even  when  the  driver  was  in  fault. 
And  the  permission  of  the  driver  will  not  excuse  the  passenger 
in  the  violation  of  a  known  rule  of  the  company.^^  Such  company 
owes  its  passengers  the  highest  degree  of  care,  but  only  ordinary 
care  to  the  general  publie.^*^ 

19  Baltimore  City  Passenger  Raih'oad  Co.  v.  Wilkinson,  30  Md.  224. 
2°  Pendleton  Street  Railroad  Co.  v.  Shires,  IS  Ohio  St.  255.     See  Cleve- 
land, Columbus,  &  Cincinnati  Railroad  Co.  v.  Terry,  8  Ohio  St.  570. 

of  accommodation.     Separation  of  dif-  Eng.    Railw.    Cas.    25G  ;    Murphy   v. 

ferent  classes  in  different  cars  may  be  Western  &  Atlantic  Railroad  Co.,  lb. 

reasonable.     Saywood  v.  Memphis  &  258. 
Charleston   Railroad  Co.,  21  Am.  & 

[*107] 


§29.]  CAPITAL   STOCK  —  LIMITATIONS.  103 

♦CHAPTER   VII. 

CAPITAL   STOCK. 

SECTION   I. 

Limitations. 

1.  General  rights  of  sliareholders.  I  3.  Cannot  mortgage,  unless  on  special  li- 

2.  Capital  stock  not  the  limit  of  property.  I  cense  of  the  legislature. 

§  29.  1.  All  joint-stock  companies  are  allowed  to  raise  a  certain 
amount,  and  sometimes  an  indefinite  amount,  of  capital,  by  the 
subscription  of  the  members;  the  corporation  in  fact  generally  con- 
sisting of  the  contributors  of  stock  and  their  assignees,  the  stock 
being  divided  into  shares,  transferable  according  to  the  by-laws  and 
charter  of  the  corporation,  entitling  the  owner  for  the  time  being 
to  the  rights  of  voting,  cither  in  person  or  by  pro.KV,  as  a  general 
thing,  and  to  a  participation  in  the  profits  of  the  enterprise.' 

2.  The  capital  stock  of  a  corporation  is  not  necessarily  the  limit 
of  its  property.^  It  is  not  uncommon  for  charters  of  stock  com- 
panies to  contain  restrictions  and  limitations  in  regard  to  their 
right  or  capacity  to  hold  real  estate,  and  sometimes  even  in  regard 
to  personal  estate. 

3.  But  railway  companies,  being  created  for  the  purpose  of  car- 
rying into  effect  a  definite  enterprise,  must  almost  of  necessity 
liave  the  power  to  issue  sufficient  stock  to  accomplisli  the  under- 
taking, or  to  raise  the  requisite  funds  in  some  other  mode,  as  by 
loan  and  mortgage.  And  where  the  stock  is  limited,  and  often 
where  it  is  not,  these  corporations  have  been  compelled,  either  to 
abandon  the  enterprise,  or  to  resort  to  loans  and  mortgages,  which 
being  in  some  sense  a  desperate  mode  of  raising  funds,  as  long  a.s 
the  company  have  power  to  issue  stock,  could  only  be  justilicd, 
*  ordinarily,  by  a  strict  and  fatal  necessity,  and  by  permission  of 
the  legislature,  as  is  generally  considered.^ 

1  Waif.  Pvailw.  252;  Penobscot  Railroad  Co.  v.  White.  41  Mo.  .512. 
■  Barry  v.  Merchants'  Exchange  Co.,  1  Sandf.  Ch.  2S0;  South  Bay  Meadow- 
Dam  Co.  v.  Gray.  30  Me.  547. 
8  Infra,  ^§148,  234.  235. 

[*108, •109] 


104  CAPITAL   STOCK.  [PART  II. 

SECTION  II. 

Conditions  precedent,  which  the  Public  Authorities  may  enforce. 
1.  Stock,  if  limited,  must  all  be  subscribed.  |  2.  Payments  at  time  of  subscription. 

§  30.  1.  If,  by  the  charter,  the  stock  of  the  company  is  divided 
into  a  certain  number  of  shares,  that  number  cannot  be  changed 
by  act  of  the  company. ^  And  if  the  charter  either  expressly  or 
by  legal  intendment  require  that  a  certain  number  of  shares  be 
subscribed  before  any  assessment  is  laid,  no  valid  assessment  can 
be  laid  until  that  number  be  hona  fide  subscribed,  and  if  it  is 
attempted  the  company  may  be  dissolved.^  (a) 

2.  And  where  the  general  law  of  the  state,  or  the  particular 
charter,  requires  a  given  proportion  of  subscriptions  to  be  paid 
in  at  the  time  of  subscription,  this  condition  must  be  complied 
with,  or  the  subscriptions  will  not  fulfil  the  condition  precedent.^ 

1  Salem  Mill-Dam  Co.  v.  Rope.s,  6  Pick.  23. 

2  Salem  :Mill-I)am  Co.  v.  Ropes,  6  Pick.  2-',\  Central  Turnpike  Co.  v.  Val- 
entine, 10  Pick.  142.  No  valid  assessment,  that  is,  for  the  general  purposes 
of  the  enterprise;  and  if  any  of  the  subscriptions  be  made  upon  conditions  pre- 
cedent, it  must  be  shown  that  such  conditions  have  been  waived  or  performed. 
Central  Turnpike  Co.  v.  Valentine,  supra.  But  assessments  to  defray  the  ex- 
penses of  incorporation,  organization,  and  preliminary  examination  have  been 
allowed  before  the  stock  is  all  subscribed.  Salem  Mill-Dam  Co.  v.  Ropes,  .supra. 
And  in  a  suit  upon  subscriptions  to  stock  in  a  corporation,  where  by  the  charter 
a  given  amount  of  stock  is  required  to  be  subscrioed  before  the  corporation  can 
go  into  operation,  it  is  necessary  to  allege  the  latter  fact,  and  the  omission 
will  be  ground  of  error,  although  the  question  is  not  I'aised  at  the  trial.  Fry 
V.  Lexington  &  Big  Sandy  Railroad  Co.,  2  Met.  Ky.  314. 

8  Highland  Turnpike  Co.  v.  ]M  Kean,  llJohns.  98;  1  Caines  Cas.  85;  Wood 
r.  Coosa  &  Chattooga  River  Railroad  Co.,  32  Ga.  273.  But  see  infra,  §  51, 
where  it  will  appear,  that  although  the  public  or  the  other  shareholders  may 
insist  upon  the  payment,  in  money,  of  the  sums  required  by  the  charter  to  be 
paid  at  the  time  of  subscription,  this  is  a  condition  which  cannot  be  taken  ad- 
vantage of  by  the  subscriber,  as  between  himself  and  the  company,  in  an  action 

(a)  Stoneham  Branch  Railroad  Co.  v.  Preston,  35  Iowa,  118;  Bray??.  Far- 

V.  Gould,  2  Gray,  278,  where  the  rule  well,  81  N.  Y.  GOO;  Allman  )-•.  Havana 

and    the    reason    on   which    it    rests  Railroad  Co.,  88  111.  521;  Santa  Cruz 

are    clearly    stated    by  Chief-Justice  Railroad    Co.    v.   Schwartz,   53    Cal. 

Shaw.     And  see  Peoria  Railroad  Co.  106. 
[*109J 


§  31.] 


SHARES   PERSONAL   ESTATE. 


105 


Where  *  the  charter  of  a  railway  company  provided  that  the 
■whole  capital  stock  should  be  subscribed,  before  any  of  the  powers 
and  provisions  of  the  charter  should  be  put  in  force,  and  the  com- 
pany made  a  call  upon  the  shares  before  the  subscriptions  were 
completed,  and  commenced  an  action  after  they  were  so,  it  was 
held  the  action  could  not  be  maintained,  the  completion  of  the 
subscription  being  necessary  to  enable  the  company  to  make  the 
call.* 


SECTION   III. 
Shares  Personal  Estate. 


1.  Railway  shares  personal  estate  at  com- 

mon law. 

2.  Not  an  interest  grovvinji:  out  of  land,  nor 

goods,  wares,  and  merchandise. 


Early  cases  treated  such  shares  as  real 
estate. 


§  31.  1.  The  shares  of  railway  companies  are  now  almost  uni- 
versally regarded  as  personal  estate,  (a)     The  English  statute  so 

for  calls.  And  it  has  been  held,  that  the  stock  subscriptions  to  a  railway  with 
banking  privileges  cannot  be  paid  in  bills  of  the  company,  but  must  all  be  paid 
in  specie.  King  v.  Elliott,  5  Sm.  &  M.  Ch.  428.  Subscriptions  in  the  name 
of  infants,  unless  some  one  is  responsible  for  payment  of  calls,  are  not  a  com- 
pliance with  the  charter.  Roman  v.  Fry,  5  J.  J.  Mar.  6;51.  Hut  if  the  cor- 
poration acquiesce  in  such  subscriptions,  it  cannot  afterwards  object.  Creed 
V.  Lancaster  Bank,  1  Ohio  St.  1.  See  Beach  i*.  Smith,  *JS  Barb.  1254.  See 
also  East  Pascagoula  Hotel  Co.  v.  West,  13  La.  An.  545;  Piscataqua  Ferry  Co. 
V.Jones,  39  N.  H.  491;  Fiser  v.  Mississippi  &  Tennessee  Railroad  Co.,  32 
Miss.  359;  Ilayne  v.  Beauchamp,  5  Sm.  &  M.  515,  537;  Lewis  t'.  Robertj^on, 
13  Sm.  &  M.  558;  Barrington  v.  jMississippi  Central  Railroad  Co.,  3l'  Miss. 
703;  Mi,>^sissippi  &  Tennessee  Railroad  Co.  v.  Harris,  3(1  Miss.  17. 

But  it  has  been  held  that  a  condition  in  the  charter,  that  one  dollar  i>er 
share  shall  be  paid  at  the  time  of  subscription,  and  the  company  organized 
when  one  thousand  shares  are  subscribed,  does  not  apply  to  subscriptions 
made  after  the  organization  of  the  company,  and  that  t!ie  failure  of  the  com- 
pany to  build  its  road  within  the  time  limited  in  the  charter  will  not  enable 
the  subscribers  to  defend  against  calls.  Taggart  v.  AN'est  Maryland  liailroad 
Co.,  24  Md.  503. 

*  Norwich  &  Lowestoft  Navigation  Co.  r.  Theobald.  1  bloody  &  ^L  151.  It 
is  not  competent  for  all  the  shareholders  to  reduce  the  amount  of  the  capital 

(rt)  Shares  are  mere  choses  in  action,  stated  in  the  te.xt.  And  this,  though  all 
while  certificates  are  chattels ;  but  both,  the  property  of  the  corporation  is  realty, 
of   course,  are  personal   property,   as     See  Baldwin  i-.  Canfield.  20  Minn.  43. 

[•110] 


lOG  CAPITAL   STOCK.  [PART   II. 

declares  tliem.  Hence  the  transfer  of  such  shares  is  not  required  to 
be  in  writing,  nor  arc  they  regarded  as  coming  within  the  acts  of 
*  mortmain.^  This  has  been  repeatedly  decided  in  regard  to  shares 
of  canal  and  dock  companies,  and  bonds  secured  by  an  assign- 
ment of  the  rates.2  Such  shares  may  be  sold  by  parol  where 
the  contract  is  executory .^  And  it  would  seem  that  the  same 
view  would  prevail  in  the  English  courts,  even  where  there  is  no 
statutory  declaration  that  the  shares  shall  be  deemed  personal 
estate.^ 

2.  And  the  sale  of  foreign  railway  shares  standing  in  the  name 
of  another  person,  and  a  guarantee  that  such  person  shall  deliver, 
need  not  be  in  writing,  either  as  liaving  respect  to  an  interest 
growing  out  of  land,  or  as  an  undertaking  for  another,  the  under- 
taking being  original  and  not  collateral.*  Railway  shares  are 
neither  an  interest  in  land,  nor  goods,  wares,  and  merchandise, 
within  the  statute  of  frauds.^ 

3.  Some  of  the  early  English  cases  treated  the  shares  of  incor- 
porated companies  as  real  estate,  where  the  interest  grew  out  of 
the  use  or  improvement  of  real  estate,^  and  a  similar  view  is  taken 


stock,  by  mutual  consent,  below  that  fixed  in  the  charter.  If  that  is  attempted, 
it  will  be  enjoined  upon  a  bill  brought  by  the  company  against  the  share- 
holders and  projectors.  Society  of  Practical  Knowledge  v.  Abbott,  2  Beav. 
559. 

^  Ashton  V.  Lord  Longdale,  4  Eng.  L.  &  Eq.  80.  This  case  extends  the 
same  rule  to  the  debentures  of  such  companies.  Neither  is  railway  scrip 
■witliin  the  Mortmain  Act.  But  mortgages  given  by  a  railway  company  of  the 
undertaking  and  tolls  may  be  within  the  act.  So  also  shares  in  a  bank  se- 
cured by  mortgages.  Myers  v.  Perigal,  IG  Sim.  533;  King  v.  Chipping  Norton, 
5  East,  2.39. 

2  Sparling  v.  Parker,  9  Beav.  450;  Thompson  v.  Thompson,  1  Coll.  C.  C. 
381;  Hilton  v.  Giraud,  1  De  G.  &  S.  183;  Walker  v.  Milne,  11  Beav.  507.  But 
see  Tomlinson  v.  Tomlinson,  9  Beav.  459. 

«  Bradley  v.  Iloldsworth,  3  M.  &  W.  422;  Bligh  v.  Brent,  2  Y.  &  Col.  2G8, 
294.  This  is  an  elaborate  case  establishing  the  proposition  that  the  shares  in 
a  corporation,  whose  works  are  real  estate,  are  nevertheless  personal  estate, 
and  this  upon  general  principles  of  the  common  law. 

*  Ilargreaves  v.  Parsons,  13  ]\I.  &  W.  5G1. 

6  Humble  V.  Mitchell,  2  Raihv.  Cas.  70;  s.  c.  11  A.  &  E.  205.  See  also 
Duncuft  V.  Albrecht,  12  Sim.  189;  Tempest  v.  Kilner,  3  C.  B.  249;  Knight  v. 
Barber,  16  M.  &  W.  66. 

s  Drybutter  i-.  Bartholomew,  2  P.  Wms.  127;  Townsend  v.  Ash,  3  Atk. 
336;  Buckeridge  v.  Ingram,  2  Yes.  Jr.  652. 

[*in] 


§  31.]  SHARES    PERSONAL    ESTATE.  107 

in  some  of  the  American  states."  IJut  the  settled  rule  ujxju  iIhj 
subject  now,  both  in  England  and  in  this  country,  is  that  before 
stated.^  This  has  often  been  decided  in  recent  analogous  cases. 
*  The  fee  of  land  being  in  the  corporation,  vests  no  interests  of  the 
nature  of  real  estate  in  the  separate  shareholders.^ 

^  Welles  V.  Cowles,  2  Conn.  507.  See  also  Cape  Sable  Company's  Case,  3 
Bland,  606,  670;  Binney's  Case,  2  Bland,  99;  Price  v.  Price,  G  Dana,  107; 
Meason's  Estate,  4  Watts,  341 ;  Copeland  v.  Copeland,  7  Bush,  349. 

*  Waif.  Railw.  254;  supra,  §  31,  and  cases  cited  in  notes,  1-4;  Tippets  v. 
Walker,  4  Mass.  595,  596,  per  Paksons,  C.  J.  Howe  v.  Starkweather,  17 
Mass.  240,  213,  per  Parker,  C.  J. 

Waltham  Bank  v.  Walthain,  10  Met.  334;  Hutchins  v.  State  Bank,  12  Met. 
421;  Denton  v.  Livingston,  9  Johns.  96,  100;  Planters'  &  Merchants'  Bank  v. 
Leavens,  4  Ala.  753;  Union  Bank  r.  State,  9  Yerger,  490;  Brightwell  v.  Mal- 
lory,  10  Yerger,  196;  Heart  i'.  State  Bank,  2  Dev.  Eq.  Ill;  State  v.  Fraiikliu 
Bank,  10  Ohio,  91,  97;  SJaymaker  v.  Gettysburg  Bank,  10  Penn.  St.  373;  Gil- 
pen  V.  Howell,  5  Penn.  St.  41,  57;  Johns  v.  Johns,  1  Ohio  St.  350;  Arnold  v. 
Ruggles,  1  11.  I.  165. 

A  distinction  has  sometimes  been  attempted  between  the  shares  of  a  bank 
or  manufacturing  corporation,  and  a  turnpike  or  railway;  but  the  slightest 
examination  will  show  that  there  is  no  substantial  ground  for  such  a  di.slinc- 
tion.  The  one  may  be  more  intimately  connected  than  the  other  with  real 
estate,  but  both  must  have  some  connection,  more  or  less  intimate,  and  iu 
neither  have  the  shareholders  any  title  to  the  land,  while  the  shares  are  merely 
a  right  to  the  ultimate  profits  of  the  company,  and  are  as  really  choses  in  action 
as  promissory  notes,  bills  of  exchange,  or  bonds  and  mortgages,  of  natural  or 
corporate  persons.  Wheelock  v.  Moulton,  15  Vt.  519;  Isham  v.  Bennington 
hon  Co.,  19  Vt.  230.     See  also  Johns  v.  Johns,  supra. 

'  Ackland  v.  Lewis,  1  K.  &  G.  334. 

[ni2] 


108 


TRANSFER   OF  SHARES. 


[part  II. 


*CHAPTER  YIII. 

transfer  of  shares. 


SECTION   I. 


Restrictions  upon  Transfer. 


1.  Express  provisions  of  charter  to  be  ob- 

served. 

2.  If  not  made  exclusive,  held  directory 

merely. 

3.  Unusual  and  inconvenient  restrictions 

void  as  in  restraint  of  trade. 


4.  The  company  may  have  a  lien  on  stock 

for  the  indebtedness  of  the  owner. 

5.  But  such  lien  is  not  to  be  implied. 

6.  Where  transfer  is  wrongfully  refused, 

vendee   may  recover   value  of  the 
company. 


§  32.  1.  We  cannot  here  attempt  to  show  in  detail  all  the  inci- 
dents of  the  transfer  of  stock-  in  railway  companies.  It  is  transfer- 
able much  the  same  as  other  personal  property,  excepting  only  that 
any  express  provision  of  the  charter  upon  that  subject  must  be 
regarded  as  of  paramount  obligation.^  (a) 

1  Strictly  speaking,  perhaps  no  shares  in  any  joint  enterprise  are  transfer- 
able so  as  to  introduce  the  assignee  into  the  association,  as  a  member,  unless 
it  be  shares  in  joint-stock  companies  and  corporations  formed  in  pursuance  of 
legislative  autliority;  and  such  shares  are  transferable  only  under  the  charter, 
and  according  to  its  terms.  Duvergier  v.  Fellows,  5  Bing.  248,  267,  per 
Best,  C.  J.  A  mere  partnership  cannot  be  so  constituted  as  to  release  the 
assignor  of  a  share  from  all  liability  to  third  persons,  and  introduce  the 
assignee  at  once,  and  completely,  into  his  place.  Blundell  v.  Winsor,  8  Sim. 
601,  per  SiiADWELL,  V.  C. ;  Jackson  v.  Cocker,  4  Beav.  59,  63.  In  England 
it  has  been  lield,  that  where  the  charter  of  a  corporation  or  the  deed  of  settle- 
ment required  the  assent  of  the  directors  to  complete  the  title  of  the  purchaser 
of  shares,  it  was  the  duty  of  the  seller  to  procure  this  assent,  in  order  to  comply 


(a)  Bisliop  V.  Globe  Co.,  135  Mass. 
132;  Stock  well  v.  St.  Louis  Mercan- 
tile Co.,  9  Mo.  Ap.  133;  State  v.  Petti- 
neli,  10  Nev.  141.  But  this  rule  ap- 
plies only  to  a  transfer  of  existing 
shares,  not  to  a  substitution  of  par- 
ties to  a  contract  for  the  purchase 
of  .shares  from  the  company.  See 
Morton's    Case,    Law    Rep.    16    Eq. 

[*113J 


105;  Beresford's  Case,  2  Macn.  &  G. 
197. 

"When  a  married  woman  transfers 
shares  without  compliance  with  the 
statute,  she  is  not  estopped  from  set- 
ting up  her  title  against  a  subsequent 
purchaser  without  notice.  Merriam 
V.  Boston,  Clinton  &  Fitchburg  Rail- 
road Co.,  117  Mass.  241. 


§  32.]  RESTRICTIONS    UPON   TRANSFER.  109 

*  2.  In  many  cases,  however,  where  tlie  charter  only  provides  a 
mode  of  transfer,  and  dues  not  declare  this  mode  exclusive  of  uU 

with  his  contract  to  convey.     Wilivinson  v.  Lloyd,  7  Q.  B.  27;  Bosanquet  v. 
Shortridgo,  4  Exch.  GD9. 

And  all  corporations  may  require  all  calls  to  be  paid,  before  they  will  sub- 
stitute the  purchaser  of  shares  for  the  original  subscriber,  as  such  substitution 
would  release  the  subscriber,  and  it  would  be  liable  to  defeat  public  enter- 
prises of  moment,  after  large  expenditure.  Hall  v.  Norfolk  Estuary  Co., 
7  llailw.  Cas.  5U;i;  s.  C  8  Eiig.  L.  &  Eq.  351.  But  the  assignee  of  a  share 
may  always  insist  on  becoming  a  member  on  paying  all  calls. 

Questions  of  some  dilliculty  often  arise  between  shareliolders  and  the  com- 
pany, as  to  whether  an  informal  transfer  has  been  confirmed  by  acquiescence. 
In  Shortridge  v.  Bosanquet,  16  Beav.  81;  s.  c.  17  Eng.  L.  &  Eq.  li'-il,  and  in 
Ex  parte  Bagge,  13  Beav.  162;  s.  c.  4  Eng.  L.  &  Eq.  72,  it  is  held  that  if  the 
entry  of  the  transfer  is  made  on  the  books  of  the  company,  it  cannot  treat  the 
transaction  as  void,  for  any  want  of  form  in  the  transfer,  especially  where 
tlie  company  has  dealt  with  the  shareholder  claiming  under  the  transfer, 
though  informal  in  a  material  matter  specially  required  by  the  charter,  the  in- 
formality being  also  such  as  its  own  ix-regularities  have  rendered  it  impossible 
to  observe.  And  where  the  secretary  of  a  joint-stock  company  fraudulently 
transferred  shares,  and  the  proprietor  of  the  shares  treated  the  transaction  as 
valid  against  the  transferee,  but  filed  a  bill  against  the  company  for  damages, 
it  was  held  tliat  he  was  not  entitled  to  relief.  Duncan  v.  Luiitley,  2  Macn.  & 
G.  30;  s.  c.  2  Hall  &  T.  78. 

In  Ex  parte  Straffon,  4  De  G.  «&  S.  256 ;  s.  c.  10  Eng.  L.  &  Eq.  275,  Lord 
Chancellor  St.  Leonards  characterizes  these  transactions,  which,  although 
infornial  in  some  respects,  are  acquiesced  in  by  both  parties,  until  there  comes 
some  crisis  in  the  affairs  of  the  company  perhaps,  or  the  transferee  becomes 
in.solvent,  as  valid  as  between  the  parties,  though  all  formalities  have  not  been 
observed. 

And  in  Bargate  r.  Shortridge,  5  Ho.  Lds.  297 ;  s.  c  31  Eng.  L.  &  Eq.  41,  njxtn 
elaborate  argument  and  great  consideration,  it  .seems  to  liave  been  definitively 
settled,  that  where  the  deed  of  a  joint-stock  company  requires  tlie  certificate 
of  consent  of  a  certain  number  of  directors  to  the  transfer  of  the  .shares  of  tlie 
company,  and  in  practice  this  has  never  been  given,  but,  for  years,  transfers 
have  been  made  on  the  verbal  assent  of  the  managing  director  on  the  sj>ot, 
and  a  large  portion  of  the  original  shares  have  been  so  transferred,  the  ctim- 
j>any  cannot  refuse  to  regard  one  as  a  member  to  whom  a  transfer  ha.s  been  so 
niade  and  whose  name  has  been  entered  on  the  books;  and  that  it  cannot 
treat  the  one  who  has  transferred  as  still  a  member.  Lord  St.  LKo.vAKns, 
who  delivered  the  principal  opinion,  pointed  out  the  distinction  between  nets 
for  which  the  directors  have  no  authority  and  which  are  absolutely  void,  and 
acts  within  their  power,  and  said  that  in  ca.se  of  the  latter  neither  law  nor 
equity  would  allow  the  company  to  take  advantage  of  their  neglect. 

This  distinction  seems  to  be  sound  and  to  have  an  important  bearing  on 
the  rights  of  the  honajide  holders  of  stock  fraudulenllv  overissued.     See  s.  c. 

[ni4j 


110  TRANSFER   OF   SHARES.  [PART    II, 

*  others,  the  provision  has  been  regarded  as  merely  directory,  and 
not  indispensable  to  the  vesting  of  title  in  the  assignee.  And 
this  has  generally  been  so  regarded,  where  tlie  express  provisions, 
in  relation  to  the  transfer  of  shares,  exist  only  in  the  by-laws  of 
the  corporation. 

3.  And  any  unusual  restriction  in  the  by-laws  of  a  corporation 
upon  the  transfer  of  stock,  as  that  it  shall  be  made  only  upon  the 
books  of  the  corporation,  in  person,  or  by  attorney,  and  with  the 
consent  of  the  president,  or  other  officers  of  the  corporation,  has 
been  regarded  as  void,  as  an  unreasonable  restraint  upon  trade,^ 

4  Exch.  699.  See  also  Taylor  v.  Hughes,  2  Jones  &  La  T.  24;  Humble  v. 
Langston,  7  M.  &  W.  517;  s.  c.  2  Railw.  Cas.  533;  Ex  parte  Cockburn,  4  De 
G.  &  S.  177;  8.  c.  1  Eng.  L.  &  Eq.  139.  But  where  the  charter,  or  the  gen- 
eral law,  requires  all  debts  of  the  owner  to  the  company  to  be  paid  before 
transfer  of  shares,  the  company  is  not  bound  to  accept  a  transfer  otherwise 
made.     Reg.  v.  Wing,  33  Eng.  L.  &  Eq.  80. 

2  Sargent  v.  Franklin  Insurance  Co.,  8  Pick.  90;  Quiner  v.  Marblehead 
Insurance  Co.,  10  Mass.  476;  Noyes  v.  Spalding,  27  Vt.  421;  Bates  v.  Kew 
York  Insurance  Co.,  3  Johns.  Cas.  238;  Chouteau  Spring  Co.  v.  Harris,  20 
Mo.  382.  In  this  last  case  the  charter  of  the  company  provided  that  the  stock 
might  be  "  transferred  on  the  books  of  the  company,"  and  the  company  was 
authorized  "to  regulate  the  transfer  of  stock"  by  by-laws,  and,  in  certain 
cases,  to  make  assess7nents  of  stockholders  beyond  their  shares  of  stock.  It  was 
held  that  no  such  assessment  could  be  made  on  one  who  liad  ceased  to  be  a 
member,  by  a  transfer  of  his  stock;  that  the  power  "  to  regulate  the  transfer" 
did  not  include  the  powder  to  restrain  transfers,  or  to  prescribe  to  whom  they 
might  be  made,  but  merely  to  prescribe  the  formalities  to  be  observed  in 
making  them;  that  the  company  could  not  prevent  one  from  selling  his  stock, 
even  to  an  insolvent  person ;  that  an  assignment  "  upon  the  books  of  the  com- 
pany "  was  sufficient  to  effect  a  change  of  ownership,  without  taking  out  a 
new  certificate  in  the  name  of  the  assignee;  and  that  any  transfer  in  writing 
was  valid  against  the  company,  if,  being  notified,  the  company  refused  to 
allow  it  to  be  made  according  to  their  by-laws. 

And  in  Daucliy  v.  Brown,  24  Vt.  197,  which  was  an  action  against  stock- 
holders, on  the  proper  debt  of  the  corporation,  where  the  charter  provided, 
that  the  persons  and  property  of  the  corporators  should  be  held  to  pay  its 
debts,  and  that  any  execution,  which  should  issue  against  the  corporation, 
might  be  levied  on  the  person  or  property  of  any  individual  thereof,  it  was 
held,  that  the  stockholders  were  liable  only  in  default  of  the  corporation,  and 
that  judgment  should  first  be  recovered  against  the  corporation,  and  the  stat- 
ute remedy  strictly  pursued.  See,  also,  in  regard  to  the  remedy  against 
stockholders,  who  are  by  statute  made  personally  liable,  Southmayd  v.  Russ, 
3  Conn.  52;  Middletown  Bank  c.  Magill,  5  Conn.  28;  Child  v.  Coffin,  17 
Mass.  64;  Roman  v.  Fry,  5  J.  J.  Marsh.  634.  And  in  Robinson  v.  Chartered 
Bank,  Law  Rep.  1  Eq.  32,  where  the  charter  required  that  no  one  should 
[*115] 


§  r>2.]  RESTRICTIONS    UPON    TRANSFER.  HI 

*  unless  as  a  provision  to  secure  the  indebtedness  of  sharehoi«J(jrs. 
In  such  case  it  is  sometimes  said  the  assignee  need  only  make  his 
right  known  to  the  company,  and  require  the  transfer  entered  upon 
the  books,  and  his  title  becomes  perfected.^ 

4.  But  if  the  former  owner  was  indebted  to  the  corporation,  and 
the  charter  lequired  all  such  indebtedness  to  be  liquidated,  before 
transfer  of  stock,  such  indebtedness  will  remain  a  lien  ujHjn  the 
stock  in  the  hands  of  the  assignee.*  (i)    And  where  the  charter  of 

*  the  company  requires  the  payment  of  all  sums  due  before  regis- 
tering a  transfer,  this  will  embrace  all  calls  made  and  which  arc 
payable  at  the  date  of  the  transfer.^ 

become  a  transferee  of  shares  unless  with  the  approval  of  the  directors,  it  was 
held  that  the  directors  must  use  this  power  reasonably  and  would  be  con- 
trolled in  equity.  But  where  the  charter  of  a  corporation  required  all  trans- 
fers to  be  executed  by  both  parties  and  approved  by  the  directors,  and  the 
transferor's  name  had  been  entered  on  the  registry  on  his  own  execution 
merely,  and  the  company  was  being  wound  up,  the  court  refused  an  application 
to  remove  his  name  from  the  registry.     Walker's  Case,  Law  Rep.  2  Eq.  5.^. 

*  Sargent  v.  Franklin  Insurance  Co.,  8  Pick.  90;  United  States  r.  Vaughan, 
n  Binn.  39-1;  Ellis  r.  Essex  Bridge  Co.,  2  Pick.  24:};  Chester  Glass  Co.  v. 
Dewey,  16  Mass.  94;  Agricultural  Bank  r.  Burr,  11  Me.  250;  Same  i;.  Wilson, 
id.  273. 

<  Union  Bank  v.  Laird,  2  Wheat.  390;  Utica  Bank  v.  Smalley,  2  Cow. 
770;  Rogers  r.  Huntingdon  Bank,  12  Serg.  &  R.  77;  Downer  v.  Zanesville 
Bank,  Wright,  477;  Farmers'  Bank  v.  Iglehart,  G  Gill,  50;  Hall  v.  United 
Stutf'S  Insurance  Co.,  5  Gill,  4S4.  See  Angell  &  Ames  Corp.,  §  355  and  note. 
In  Marlborough  Manufacturing  Co.  v.  Smith,  2  Conn.  579,  it  was  said  the  tran.s- 
fer  of  shares  to  constitute  the  assignee  a  stockholder  must  be  in  strict  conformity 
to  the  charter  and  by-laws.  And  in  the  case  of  Pittsburg  &  Connellsville  Rail- 
road Co.  V.  Clarke,  29  Penn.  St.  14G,  Lewis,  C.  J.,  goes  into  an  elaborate  review 
of  the  cases  to  show,  that  under  the  Pennsylvania  statutes,  (which  provide, 
tliat  no  transfer  of  shares  shall  be  made  while  the  holder  remains  indebted  to 
tlie  company,  except  by  consent  of  the  board  of  directors,  and  no  transfer 
.'^hall  discharge  any  liabilities  before  incurred),  both  the  stock  and  the  holder 
remain  liable  for  all  calls  due  before  the  transfer;  that  the  original  sub.^criber, 
having  promised  to  pay  so  much  on  a  share,  is  indebted  to  the  company  before 
calls  made;  and  that  even  where  the  transfer  is  made  with  the  consent  of  the 
directors,  he  will  remain  liable  until  all  calls  are  paid,  notwithstanding  the 
statute  subjects  the  transferee  also  to  a  like  liability.  The  same  principle  was 
reaffirmed  in  Graff  r.  Pittsburg  &  Steubenville  Railroad  Co.,  31  Penn.  St.  4S0. 

«  Ex  parte  Orpen,  9  Jur.  n.  s.  C15.     This  question  is  fully  discussed  in 

(h)  A  transfer  on  the  books  of  the     And  see  In  re  Northern  Assam  Tea 
company  is  a  waiver  of  the  lien.     Hill     Co.,  Law  Rep.  10  Eq.  458. 
V.  Pine  River   Bank,  45  X.  H.  300. 

[•116,  MIT] 


112  TRANSFER   OF   SHARES.  [PART  II. 

*  5.  A  corporation  has  no  implied  lien  upon  stock  for  the  liabili- 
ties of  the  stockholders  to  the  company.^  (c) 

*  6,  And  when  the  company  wrongfully  refuse  to  record  trans- 
fers of  shares,  on  their  books,  the  vendee  may  recover  the  price  of 
such  shares,  the  company  having  caused  them  to  be  sold,  as  the 
property  of  the  vendor.^  (c?) 

Reese  v.  Bank  of  Coinraerce,  14  Md.  271,  where  it  was  held  that  the  lien  of 
the  bank  on  the  stock  was  not  waived  by  a  certificate  entitling  the  holder  to 
a  transfer  on  surrender  thereof,  that  an  assignee  took  subject  to  the  rights  of 
the  bank,  and  that  he  could  obtain  a  transfer  only  on  payment  of  all  debts 
due  at  time  of  final  demand.  Such  a  lien  will  be  good  against  the  money  for 
which  the  shares  were  sold,  in  the  hands  of  the  official  liquidator,  for  the 
shareholder.     In  re  General  Exchange  Bank,  Law  Rep.  6  Ch.  App.  818. 

^  Massachusetts  Iron  Co.  v.  Hooper,  7  Cush.  183 ;  Heart  v.  State  Bank,  2 
Dev.  Eq.  Ill;  Sargent  v.  Franklin  Insurance  Co.,  8  Pick.  90,  and  cases 
cited  supra,  note  2.  But  dividends  due  and  unpaid  may  be  said  to  be  a  fund, 
in  the  hands  of  the  corporation,  which  it  is  not  obliged  to  pay  to  the  assignee  of 
the  stock,  until  its  debts  from  the  assignor  are  liquidated.  Dividends  are 
strictly  due  only  to  the  assignor,  and  would  not  probably  pass  by  a  mere  sale 
of  the  stock,  unless  there  were  some  special  ground  for  giving  the  transfer  of 
the  stock  that  operation. 

(c)  The  corporation  cannot  refuse  been  held  that  he  may  maintain  an 

to  permit  a  transfer  in  the  absence  of  action  against  the  corporation  for  re- 

an  express  provision  and  of  special  fusing  to  issue  or  transfer  a  certificate, 

agreement,  merely  because  the  assignor  though  the  assignment  was  not  made 

is  indebted   to   the   company.     Mer-  on   the   books    pursuant    to   charter, 

chants'   Bank   v.  Shouse,    102   Penn.  Baltimore    City    Passenger    Railway 

St.  488;  Farmers'  Bank  v.  Wasson,  48  Co.  v.  Sewell,  35  Md.  238.     But  upon 

Iowa,  340;  Carroll  v.  Mullanphy  Sav-  principle,  as  there  is  no  privity  of  con- 

ings  Bank,  8  Mo.  Ap.  249;  Case  v.  tract,  it  would  seem  that  the  assignee 

Bank,  100  U.  S.  446.  should  resort   to  proceedings  against 

(tl)  And  it  has  been  held  that  the  the  assignor,  either  by  action  for  dam- 
assignee  may  maintain  assumpsit  for  ages  or  by  a  bill  for  a  specific  perform- 
a  refusal  to  transfer.  Commercial  ance,  or  to  proceedings  treating  the 
Bank  v.  Kortright,  22  Wend.  348.  assignor  as  trustee.  The  assignee 
And  see  Merchants'  National  Bank  v.  may  in  equity  compel  issue  of  a  certi- 
Richards,  6  Mo.  Ap.  4G1;  Scripture  ficate,  if  he  is  willing  to  pay  implied 
V.  Francestown  Soapstone  Co.,  50  instalments.  Iron  Railroad  Co.  v. 
N.  H.  571;  West  Branch  Canal  Co.'s  Fink,  41  Ohio  St.  321. 
Appeal,  81  Penn.   St.   19.     So  it  has 

[*118,  *119] 


§33.] 


CONTRACTS   TO    TRANSFER   STOCK. 


113 


SECTION   II. 


Contracts  to  transfer  Stock. 


1.  Transfer  under  English  statutes.    Reg- 

istered companies. 

2.  Contracts  to  transfer  stock  not  yet  ac- 

quired, valid  if  honajlde. 
n.  3.  EtTect  of  rule  requiring  assent  of 
directors. 

3.  Vendor  must  have  the  stock,  at  the 

time  agreed  on. 

4.  Force  of  usages  of  stock-exchange. 

5.  Company  will  reform  the  registry  at 

its  peril. 


0,  10.  Company  may  compel  one  to  ac- 
cept shares  on  contract. 

7.  Stock  standing  in  joint  names  belongs 

to  survivors. 

8.  Mode  and  elfcct  of  correcting  registry. 

9.  If  the  company  vary  the  contract,  spe- 

cific peiforniance  will  he  denied. 

10.  Closing  contracts  hy  olTcr  and  accep- 

tance. 

11.  Form   of  transfer.    Two  may  join  in 

one  transfer. 


§  33.  1.  Questions  often  arise  in  regard  to  transfers  of  stock  in 
incorporated  companies  as  to  the  quantity  of  interests  conveyed, 
the  title  of  the  person  making  the  conveyance,  and  many  other  in- 
cidents. The  English  statutes  in  regard  to  the  registration  of 
*  railway  companies  arc  not  intended  to  affect  the  property  in  the 
shares,^  and  a  transfer  is  valid,  although  made  before  the  registra- 
tion.- 

2.  It  would  seem,  too,  that  a  contract  to  transfer  stock  in  rail- 
way companies,  at  a  future  time,  which  the  party  neitlKM-  has,  nor 
is  about  to  have,  but  expects  to  purchase  in  the  market,  for  the 
purj)Osc  of  fulfilling  his  undertaking,  is  nevertheless  a  valid  con- 
tract, and  not  illegal,  or  against  the  policy  of  the  law,^  and  that 

'  London  &  Brighton  Railway  Co.  r.  Fairclough,  2  Railw.  Cas.  oil;  s.  c. 
2  M.  &  G.  G7-1. 

2  Sheflield,  Ashton-undcr-Lyne  &  Alanchestcr  Railway  Co.  v.  Woodcock, 
2  Raiiw.  Gas.  522;  s.  c.  7  M.  &  W.  574. 

«  Ilibblewhite  v.  M'Morine,  5  M.  &  W.  4G2.  "Walford  intimates.  Waif. 
Railw.  25(i  and  note,  that  the  law  of  France  regard.s  contracts  of  thi.s  class  as 
illegal,  and  cites  Ilaniiuic  v.  Goldner,  11  M.  &  W.  81f),  :n  confinnation.  But 
the  case  does  not  expressly  decide  the  point.  Where  the  deed  of  settlement 
required  the  assent  of  the  directors  to  a  transfer  of  shares,  and  tin"  vendor  did 
not  obtain  it,  and  in  the  mean  time  the  price  of  share:^  fell  in  the  market,  it 
was  held  that  the  vendee  might  recover  back  his  money.  Wilkinson  r.  Lloyd, 
7  Q.  R.  27.  Rut  where  the  plaintiffs  covenanted  to  snKscrihe  for  stock  in  a 
railway,  and  pay  ten  per  cent,  and  then  transfer  to  defendant,  who  agreed  to 
pay  the  residue,  but  the  by-laws  of  the  company  provided  for  transfer  only 
after  the  payment  of  thirty  per  cent,  unless  by  the  consent  of.tlie  ilircctors, 
VOL.  I. -8  [*120J 


114  TRANSFER   OF   SHARES.  [PART   II. 

the  intimation  of  Lord  Tenterden,'*  that  such  contracts  were 
illegal,  and  not  to  be  encouraged  by  the  law  or  its  ministers,  is  not 
to  be  regarded  at  this  time  as  sound  law,  however  good  sense  or 
good  morality  it  may  seem  to  bo. 

3.  It  is  clearly  not  a  stock-jobbing  transaction  within  the  Eng- 
lish statute.^  But  to  the  performance  of  such  a  contract  it  seems 
*  to  be  requisite,  that  the  seller  should  bona  fide  procure  the  stock, 
by  the  time  appointed  for  the  transfer.^ 

4.  The  English  reports,  both  in  law  and  equity,  and  especially 
the  more  recent  ones,  abound  in  cases  more  or  less  affecting 
transfers  of  shares  on  the  stock-exchange,  and  the  practice  and 
law  governing  transactions  between  brokers.  These  rules  are 
allowed  to  have  great  weight  in  fixing  the  construction  and  effect 
of  contracts  made  through  the  instrumentality  of  brokers.  In 
the  sale  of  shares  in  companies  requiring  the  consent  of  the 
directors  or  of  the  company  itself  to  the  transfer,  it  is  not  under- 
stood, according  to  these  rules,  that  the  vendor  or  his  broker 
undertakes  to  procure  that  consent,  and  if  he  does  all  that  is 
requisite  to  effect  a  transfer  of  the  equitable  interest  of  the 
property,  and  there  is  no  obstruction  to  the  vendee  in  obtaining 
the  registration  of  such  transfer,  by  taking  the  prescribed  steps 
the  transfer  will  be  regarded  as  complete.^  There  have  been 
somewhat  recently  two  English  decisions  bearing  upon  the  sale 
of  shares  upon  the  stock-exchange  which  seem  to   require  an 

which  was  refused,  and  the  plaintiffs  tendered  the  defendant  an  assignment 
with  power  of  attorney  to  transfer,  which  was  refused  as  not  being  a  compli- 
ance with  the  contract,  it  was  held,  in  an  action  for  damages,  that  the  plain- 
tiffs had  complied  with  their  covenant,  and  miglit  recover,  not  the  difference 
beween  the  value  of  the  stock  at  the  time  of  refusal  and  the  sum  due  upon 
the  subscription,  but  the  whole  sum  due  and  interest.  See  also  Orr  v.  Bige- 
low,  14  N.  Y.  5o6. 

*  In  Bryan  v.  Lewis,  Ryan  &  Moody,  N.  P.  38G,  and  in  Lorymer  v.  Smith, 
1  B.  &C.  1. 

6  Hewitt  V.  Price,  4  M.  &  G.  355;  Mortimer  r.  M'Callan,  6  M.  &  W.  58. 

8  Ilibblewiiite  v.  M':\Iorine,  2  Railw.  Cas.  51-66;  s.  c.  6  M.  &  W.  200. 
The  comments  of  Isham,  J.,  in  Xoyes  v.  Spaulding,  27  Vt.  420,  429,  may  be 
regarded,  perhaps,  as  giving  the  present  state  of  the  English  law  upon  this 
subject. 

7  Stray  v.  Russell,  1  Ellis  &  E.  888,  916;  s.  c.  5  Jnr.  x.  s.  1295;  s.  c. 
affirmed  in  Exchequer  Chamber,  2  Ellis  &  E.  592.  Sea  also  Field  t;.  Lelean,  6  H. 
&  N.  G17,  where  a  custom  of  the  stock-exchange  not  to  deliver  shares  of  a  par- 
ticular class  on  contracts  of  sale  until  payment  of  the  price,  was  held  binding. 

[*121] 


§  33.]  CONTRACTS   TO    TRANSFER   STOCK.  11.0 

extended  statement  here.  In  Coles  v.  Bristowe  ^  the  question 
was  heard  in  chancery.  The  custom  of  the  stock-exchange  serins 
to  be  that  shares  are  bought  and  sold  for  the  next  settling  day, 
when  the  jobber  is  either  to  take  the  liability  on  himself,  or  pass 
the  names  of  transferees  to  whom  no  reasonable  ol)jection  can  be 
taken  ;  and  on  such  names  being  accepted  by  tlio  vendor,  and 
the  transfers  made  and  the  price  paid  by  the  transferees,  the 
}»ersonal  liability  of  the  jobber  to  the  vendor  ceases.  It  was 
accordingly  held,  that,  where  the  plaintiff  instructed  his  brokers 
to  sell  certain  shares  for  him,  and  they  disposed  of  them  to  the 
defendants  for  the  next  settling  day,  both  plaintiff  and  defend- 
ants being  familiar  with  the  usages  of  the  stock-exchange,  and 
the  transaction  being  confessedly  subject  thereto,  and  on  the  set- 
tling day  the  defendants  passed  the  names  of  persons  whom  the 
plaintiff  accepted,  and  executed  transfers  to  them,  and  received 
the  price  of  them,  but  the  suspension  and  winding  up  of  the  com- 
pany between  the  sale  and  the  settling  day  having  rendered  the 
registration  of  the  transfers  impossible,  it  was  held  that  the 
defendants,  who,  up  to  the  acceptance  of  the  transferees  and 
transferring  the  shares  to  them,  were  liable  to  indemnify  the 
vendor  in  respect  of  his  liability  on  the  shares,  became  thereupon 
exonerated  from  all  liability ;  and  the  transferees  became  liable 
t(j  the  same  extent  by  accepting  the  transfer  as  if  they  had  exe- 
cuted it  on  their  part,  but  how  far  that  liability  will  extend  was 
not  determined  here.  But  it  was  here  held  that  the  vendor  of 
shares  on  the  stock-exchange  cannot  excuse  himself  from  being 
bound  by  the  usages  of  the  exchange,  so  long  as  he  continues 
to  sell  there  by  any  private  instructions  to  his  broker.  The 
same  subject  is  very  extensively  discussed  by  Lord  Chief-Justico 
CocKBURN  in  delivering  the  opinion  in  Gressell  v.  Bristowe.^  with 
the  same  general  results  ;  so  that  it  must  now  be  regarded  as 
settled  in  England  that  one  who  sells  upon  the  stock-exchange 
through  a  broker,  will  be  bound  by  the  known  usages  of  the 
place,  and  whether  such  usages  al'e  in  fact  known  to  the  vendor 
or  not  will  not  probably  be  held  essential,  so  long  as  they  arc  of 
general  notoriety  and  understood  both  by  his  broker  and  fliat  of 

8  17  W.  R.  lOo,  before  the  full  Court  of  Clnncery  Appeal,  Lord  ClKiiicel- 
lor  Cairxs,  and  Lords  Justices  Wood  and  Selwix. 

®  17  \V.  R.  123,  in  the  Exchequer  Chamber,  on  error  from  the  Common 
Pleas,  IG  W.  R.  428;  s.  c.  Law  Rep.  3  C.  P.  112;  iu/ra,  §  GO,  pi.  4.  note  4. 

[•121] 


IIG  TRANSFER   OF   SHARES.  [PART   II. 

the  Other  party.  The  precise  point  of  the  decisions  seems  to 
be,  that  any  usage  of  the  stock-exchange  which  is  uniform  and 
reasonable  will  be  understood  to  form  one  of  the  terms  of  sales 
made  there,  unless  there  is  something  to  show  that  the  parties 
understandingly  waived  or  departed  from  it.  And  the  fact  that 
one  of  the  parties  gave  special  instructions  to  his  broker,  which 
were  not  communicated  to  the  broker  of  the  other  party,  will 
make  no  difference. 

*  5.  Where  the  company  assume  to  erase  transfers  from  their 
books  on  the  alleged  ground  that  they  are  merely  colorable,  and 
made  for  the  purpose  of  injuriously  affecting  the  interest  of  the 
company  or  others,  they  assume  the  burden  of  showing  such  to 
be  the  facts  ;  and  the  transferees  will  be  entitled  to  a  mandamus 
to  compel  the  company  to  restore  their  names  to  the  registry  as 
the  proprietors.^'^ 

6.  It  is  competent  for  the  company  to  maintain  a  bill  in  equity 
against  one  upon  an  agreement  to  accept  shares,  although  no  writ- 
ing has  been  signed  by  the  defendant  according  to  the  statute  re- 
quiring the  acceptance  to  be  in  writing.  The  contract  may  be 
enforced,  as  an  agreement  to  do  what  the  statute  requires,  and 
the  decree  will  settle  the  question  whether  the  defendant  or  some 
other  one  is  the  lawful  holder  of  the  shares  in  question.^i 

7.  Where  stock  is  allowed  to  stand  in  the  joint  names  of  two 
persons,  they  will  be  regarded  as  joint  tenants,  unless  something 
is  shown  to  the  contrary,  and  the  company  may  treat  the  survivor 
as  the  owner  of  the  whole. ^^ 

8.  A  court  will  not  interfere  to  compel  a  joint-stock  company 
to  correct  their  registry  by  removing  one  name  and  inserting 
another  while  an  action  at  law  is  pending  in  regard  to  the  same 

10  Ward  v.  South  Eastern  Railway  Co.,  2  Ellis  &  E.  812;  s.  c.  6  Jur.  x.  s. 
800.  The  owner  of  shares,  unless  precluded  by  the  charter  of  the  company, 
may  lawfully  transfer  them  to  any  one  who  will  accept  the  same,  although  it 
be  done  to  escape  the  responsibility  of  membership.  Weston's  Case,  17 
"\V.  U.  62;  Ex  pane  Rayner,  id.  64.* 

"  New  Brunswick  &  Canada  Railway  Land  Co.  v.  Muggerid.Eje,  4  Drew. 
CSG;  Bog  Lead  Co.  v.  Montague.  10  C.  B.  n.  s.  481;  s.  c.  8  Jur.  n.  s.  310. 

1^  Garrick  r.  Taylor,  3  Law  T.  n.  s.  4G0.  And  this  will  be  so,  though,  by 
the  rules  of  the  bank,  there  is  to  be  no  benefit  of  survivorship,  it  appearing  to 
have  been  the  purpose  of  the  deceased  to  have  his  share  go  to  the  survivor. 
Garrick  v.  Taylor,  29  Beav.  79;  7  Jur.  n.  s.  116,  affirmed  by  Lords  Justices, 
10  W.  R.  4n. 
[*122] 


§  33.]  CONTUACTS  TO  TRANSFER  STOCK.  117 

mattcr.^^  Wlierc  the  registry  is  altoro<l  under  a  misapprolionsion 
as  to  the  genuineness  of  a  transfer  it  will  not  have  the  effect  to 
transfer  the  shares.^*  Specific  performance  of  a  contract  to  sell 
shares  will  be  decreed  in  eciuity,  notwithstundiui^  the  eon.stifution 
of  the  company  provides  that  no  shares  shall  be  transferred 
except  in  such  mode  as  the  board  shall  approve,  and  the  board 
refuse  to  give  its  consent  to  the  transfer.^^ 

9.  If  the  company  in  their  notice  of  allotment  annex  a  condi- 
tion which  they  have  no  power  to  do,  it  will  be  regarded  as  such 
a  variation  *  of  the  contract  that  a  court  of  equity  will  not  inter- 
fere to  decree  specific  performance  of  the  original  contract.  As 
when  the  company  in  such  notice  require  the  allottee  to  sign  the 
deed  of  settlement  on  pain  of  forfeiture  of  the  shares,  when  the 
constitution  of  the  company  gave  no  such  power.^'^ 

10.  The  learned  judge.  Lord  Chancellor  "Westbury,  here  dis- 
cusses the  general  questions  involved,  and  concludes,  that  in  general 
the  court  will  specifically  enforce  a  contract  to  accept  of  shares  in  a 
joint-stock  company.  His  lordship  explains  much  at  lenglh  his  own 
views  of  the  true  modus  operandi  in  effecting  contracts  by  means  of 
written  offers  and  acceptance,  and  concludes,  very  justly,  we  think, 
that  one  who  attempts  to  enforce  such  a  contract  must  show  that 
the  acceptance  on  his  part  was  prompt,  simple,  and  unqualified ;  and 
that  where  new  conditions  are  made  in  the  acceptance  the  contract 
will  not  be  regarded  as  closed  until  assent  is  given  by  the  other 
party,  either  expressly  or  by  fair  implication,  to  such  conditions. 

11.  The  transfer  of  shares  intended  to  be  recorded  on  the  books 
of  the  company  should  contain  nothing  but  the  transfer  of  tho 
title.  And  where  there  are  shares  in  different  companies  trans- 
ferred between  the  same  parties  at  the  same  time,  it  will  be  moro 
convenient  to  have  a  separate  transfer  for  each  company. '"  IJut 
as  to  the  mere  conveyance  of  title  between  the  parties,  one  con- 
veyance is  sufficient.  And  it  is  held  even  that  two  different 
owners  may  join  in  one  conveyance  to  the  same  person.'^ 

"  Ex  parte  Ilanis,  29  Law  J.  3G1;  s.  c.  .')  11.  &  N.  809. 

"  Hare  r.  London  &  North  Western  Railway  Co.,  1  Johns.  Ch.  Eng.  722. 

"  Poole  r.  iSliddleton,  29  Beav.  646;  s.  c.  7  Jar.  n.  s.  1262. 

"  Oriental  Inland  Steam  Co.  v.  Briggs,  2  Johns.  &  IL  625;  s.  C.  8  Jur. 
N.  8.  201. 

"  Lord  Camphkll,  C.  J.,  in  Reg.  v.  General  Cemetery  Co.,  6  E.  &  R.  415, 
419;  Copeland  v.  North  Eastern  Railway  Co.,  6  id.  277. 

1*  Wills  V.  Bridge,  4  Exch.  193. 

[nes] 


118  TRANSFER   OF   SHARES.  [PART   II. 

SECTION   III. 
Intervening  Calls,  or  Assessments. 


1.  Vendor  must  pay  calls,  if  that  is  requi- 
site to  pass  title. 
n.  (a).   But  as  between  parties  liability 
depends  on  agreement. 


2.  Generally  it  is  matter  of  construction, 
and  inference. 
n.  2.  Calls  paid  by  vendor  after  exe- 
cuting transfer. 


§  34.  1.  It  has  been  said,  too,  that  the  contractor  to  transfer 
.stock  must  see  to  it  that  all  calls  are  met,  up  to  the  time  of  the 
*  transfer,  as  in  general  the  charters  of  such  companies,  or  their 
by-laws,  prohibit  the  transfer  of  stock  while  calls  remain  un- 
paid.^ (a)  But  we  have  seen  that  this  is  a  provision  for  the  pro- 
tection of  the  company,  and  in  which  they  alone  are  interested, 
and  which  will  not  ordinarily  avoid  a  sale,  between  other  parties, 
otherwise  valid. 

2.  And  it  would  seem  that  the  question,  upon  which  party  the 
duty  to  pay  future  calls  shall  rest,  is  one  of  construction,  in  the 
absence  of  express  stipulation  ;  at  all  events,  one  of  intention.  It 
may  perhaps  be  safe  to  say  that  the  sale  of  stock,  in  the  present 
tense,  ordinarily  implies  that  it  is  free  from  incumbrance  of  any 
kind,  unless  there  is  some  exception  or  qualification  in  the  con- 
tract. And  that  may  be  the  common  presumption,  in  regard  to 
contracts  to  deliver  stock  in  future.  But  in  the  latter  case  the 
presumption  is  not,  by  any  means,  of  so  conclusive  a  character  as 
in  the  former,  and  sometimes,  in  such  cases,  it  has  been  held  not 
incumbent  upon  the  seller  to  pay  intervening  calls.^ 

^  Waif.  Railw.  25G,  257.  And  under  the  English  statute  8  Vict.  c.  1(3, 
§  16,  providing  that  no  transfer  of  shares  shall  be  valid  until  the  transferor 
shall  pay  any  call  due  on  such  shares,  or  on  any  other  shares  held  by  him, 
does  not  apply  to  the  transfer  of  shares  on  which  no  calls  are  due.  notwith- 
standing the  transferor  may  hold  shares  not  fully  paid  up.  Ilubbersty  v. 
Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.,  Law  Rep.  2  Q.  B.  59. 

2  Shaw  V.  Rowley,  IG  ^I.  &  W.  810;  s.  c  5  Railw.  Cas.  47.     In  this  case 

(a)  As   between   assignor  and   a.s-  ever  the  certificates  show  to  be  due; 

signee,  the  liability  for  unpaid  calls  and  where  there  is  no  delivery  of  cer- 

depends  altogether  upon   agreement,  tificate  and  no  reference  to  the  amount 

But  in  the  absence  of  agreement,  it  paid,  it  may  be  implied  that  the  .shares 

may  fairly  be  implied  that  the  pur-  are   paid    up.       See   Morawetz   Priv. 

chaser  assumes  the  payment  of  what-  Corp.  §  IGl,  and  cases  cited. 
[*124] 


§35.] 


TRANSFER  BY  DEED  IN  BLANK. 


119 


•SECTION   IV. 


Transfer  by  Deed  in  Blank. 


1,  2.  Blank  transfer  formerly  held  invalid 

in  Eii^'land. 
3.  Rule  diflerent  in  America. 


4.  Deed  executed  in  blank  and  filled 
by  procuration  valid. 


§  35.  1.  Ordinarily  tlic  transfer  of  stock,  or  a  contract  to  trans- 
fer, is  not  required  to  be  in  any  particular  form.  All  that  is 
requisite  is,  the  same  as  in  any  other  contract,  the  meeting  of  the 
minds  of  the  parties.     But  in  some  cases  the  shares  are,  by  the 


it  was  held  no  impediment  to  the  seller's  readiness  to  convey  the  shares  that 
he  had  not  paid  an  intervening  call,  as  lie  mit^lit  do  it  at  the  moment  of  exe- 
cuting the  transfer;  and  the  court  say  the  call  was  ultimately  to  be  paid  by 
the  purchaser. 

In  Humble  v.  Langston,  7  M.  &  W.  517;  s.  c.  2  Railw.  Gas.  533,  it  is 
decided  that  on  the  sale  and  transfer  of  the  shares,  where  tlie  purchaser's 
name  is  not  substituted  on  the  register  for  that  of  the  seller,  but  the  stock  is 
still  standing  in  the  seller's  name,  so  that  he  is  subject  to  the  payment  of 
future  calls,  he  cannot  recover  the  money  of  the  purchaser,  because  there  is 
no  implied  contract  to  that  effect,  resulting  from  the  transaction.  This  is  a 
most  remarkable  decision,  and  unsupported  by  either  reason  or  analogy. 
But  it  is  affirmed  in  the  subsequent  case  of  Sayles  v.  Blane,  6  Railw.  Cas. 
79.  These  cases  can  be  accounted  for  only  on  the  principle  of  di.scouraging 
blank  unregistered  transfers,  which  have  the  effect  to  evade  the  stamp  dutie.s. 
Shelf.  Railw.  lUS;  Report  on  Railways,  1839,  No.  517,  p.  4. 

In  Cheltenham  &  Great  Western  Union  Railway  Co.  v.  Daniel,  2  Q.  B.  281 ; 
fi.  c.  2  Railw.  Cas.  728,  it  is  held  that  the  purcha.ser  of  shares  may,  by  way 
of  estoppel  in  pais,  be  made  liable  for  calls  before  his  name  is  actually  substi- 
tuted for  that  of  the  seller  on  the  register  of  shares.  If  so,  both  parties  are 
liable  for  the  calls,  and  the  seller,  while  his  name  remains  on  the  register,  is 
the  mere  surety  of  the  purchaser,  as  to  future  calls.  And  while  the  purchaser 
suffers  the  seller's  name  to  remain  on  the  register,  and  liable  tliroui;h  his 
neglect  to  the  payment  of  calls,  what  more  proper  tiian  that  he  should  bo 
held  to  an  implied  promise  to  indemnify  the  seller  against  all  loss  on  that 
account?     See  Burnett  r.  Lynch,  5  B.  &  C.  589. 

Since  the.  above  was  written,  the  later  case  of  Walker  r.  Bartlett.  IS  C.  B. 
815;  s.  c.  3G  Eng.  L.  &  Eq.  3GS,  has  come  to  hand,  where  a  blank  trans- 
fer seems  to  be  regarded  as  perfectly  valid,  and  the  transfer  in  this  mode  as 
imposing  on  the  vendee  the  duty  of  paying  calls  on  the  shares,  while  tliey 
remain  his  property.  This  result  is  very  gratifying,  as  the  former  decisions 
had  quite  effectually  mystified  the  subject. 

[•125] 


120  TRANSFER   OF   SHARES.  [PART   II. 

express  requirements  of  the  charter,  made  transferable  only  by 
deed  executed  by  both  parties  to  the  transfer. 

2.  And  in  such  case,  it  was  considered  that  a  deed  executed  by 
the  seller,  with  a  blank  for  the  name  of  the  transferee,  was  no  com- 
pliance with  the  statute.^  (a)  The  opinion  of  the  court  seems  to  rest 
*  upon  the  early  cases,  in  which  it  is  held  that  the  party  cannot 
effectually  execute  a  deed,  leaving  such  important  blanks  as  the 
name  of  the  grantee  or  obligee,  while  it  is  considered  that  less  im- 
portant ones,  like  the  date,  etc.,  may  be  supplied,  after  the  execu- 
tion, by  permission  of  the  party  executing  the  same.  This  seems 
to  have  been  the  undoubted  rule  of  the  English  law,  from  the 
authorities  cited  in  the  last  case. 

3.  But  it  seems  to  be  ratiier  technical  than  substantial,  and  to 
found  itself  either  in  the  policy  of  the  stamp  duties,  or  the  supe- 
rior force  and  sacredness  of  contracts  by  deed,  both  of  which  have 
little  importance  in  this  country.  And  the  prevailing  current  of 
American  authority,  and  the  practical  instincts  and  business 
experience  and  sense  of  our  people,  are  undoubtedly  otherwise. 

4.  There  is  no  good  reason  wliy  one  should  not  be  as  much 
bound  by  a  deed  executed  in  blank,  and  filled  according  to  his 
directions,  as  by  a  blank  acceptance  or  indorsement  of  a  bill,  or 
note ;  and  accordingly  we  find  a  large  number  of  decisions  of  the 
American  courts  leading  in  that  direction.^ 

1  Hibblewhite  v.  M'Morine,  2  Railw.  Cas.  51 ;  s.  c.  6  M.  &  W.  200.  It  is 
considered  that  two  or  more  several  owners  of  shares  may  join  in  one  def  d  to 
convey  their  shares.  Wills  v.  Bridge,  4  Exch.  193;  Enthoven  v.  Hoyle,  13 
C.  B.  373;   s.  c.  9  Eng.  L.  &  Eq.  434.     See  supra,  §  34,  note  2. 

*  Stahl  V.  Berger,  10  S.  &  R.  170;  Sigfried  v.  Levan,  6  S.  &  R.  308;  Wiley 
r.  Moor,  17  S.  &  R.  438;  Ogle  v.  Graham,  2  Penn.  132;  WooUey  v.  Constant,  4 
Johns.  .54,  60:  Ex  parte  Kerwin,  8  Cow.  118;  Boardman  v.  Gore,  15  Mass.  -331. 
And  the  following  certainly  incline  in  the  same  direction.  Smith  v.  Crooker, 
5  Mass.  o'dS,  pr-r  Parsons,  C.  J.  ;  Hunt  v.  Adams,  6  Mass.  519;  Warring i-. 
Williams,  8  Pick.  326;  Adams  r.  Frye,  3  Met.  103;  Commonwealth  Bank  v. 
Curry,  2  Dana,  142;  Commonwealth  Bank  v.  McChord,  4  Dana,  191;  Johnson 
V.  United  States  Bank,  2  B.  Monr.  310;  Camden  Bank  v.  Halls,  2  Green,  583; 
Duncan  v.  Hodges,  4  M'Cord,  239. 

In  London  &  Brighton  Railway  Co.  v.  Faircloiigh,  2  Man.  &  G.  674;  s.  c. 
2  Railw.  Cas.  544,  the  deed  of  transfer,  where  one  name  was  first  in.<:erted  as 
transferee,  and  subsequently  erased  and  another  inserted,  and  the  deed  re- 

(n)  A  blank  indorsement  of  the  Detroit  Transit  Railway  Co.,  47  Mich, 
stock-certificate   is  valid.     Walker  v.     338. 

[*126] 


§  36.]    SALE  OP  SPURIOUS  SHARES.  —  RULES  OP  STOCK  EXCHANGE.    121 


♦SECTION  V. 


Sale  of  spurious  Shares.  —  Hules  of  Stock  Exchange. 


1.  Vendor,  who  acts  bona  fide,  must  re- 
fund money. 
n.  \.  Discussion  of  the  extent  of  im- 
plieJ  warranty. 

3.  No    implied    warranty   in    such    case 


which   will   entitle   the   vendee   to 
special  damage. 
Rule  of  the  stock-e.xchangc,  made  after 
the   sale,    not    binding    on    parties. 
How  far  such  rules  bind  parties. 


§  3G.  1.  Where  one  employed  a  share-broker  to  sell  in  the  mar- 
ket what  purported  to  be  scrip  or  certificates  of  shares  in  a  pro- 
jected railway  company,  which  subsequently  proved  to  have  been 
forged,  and  the  broker  paid  the  price  at  which  he  sold  them  to  the 
defendant,  but  being  called  upon  by  the  purchaser  to  make  good 
the  loss,  repaid  the  money,  and  a  further  sum,  according  to  a  reso- 
lution of  the  committee  of  the  stock-exchange  as  to  the  value  of 
genuine  shares  in  the  same  railway  company,  which  resolution  was 
passed  after  the  sale  of  the  spurious  shares ;  the  defendant  declin- 
ing to  pay  this  further  sum,  the  broker  brought  an  action,  claiming 
to  recover,  as  upon  a  warranty  that  the  shares  were  genuine,  with 
a  count  for  money  paid.^ 

executed  by  the  vendor,  was  held  void  because  it  had  not  been  restamped. 
hfm,  §§2.39,  241. 

But  where  one  borrowed  money  and  deposited  certificates  of  railway  shares 
with  blank  a.ssignments  upon  them  as  security,  and  the  blanks  were  not  filled 
up  till  the  shareholder  became  bankrupt,  it  was  held  that  the  depositary  had 
a  lien  upon  the  .shares  for  money  advanced  by  him  or  paid  on  calls  upon  the 
shares.  Ex  parte  Dobson,  2  Mont.  D.  &  De  G.  G8."j.  And  railway  bonds  issued 
with  the  name  of  tiie  obligee  blank,  are  held  negotiable  in  that  form, 
although  not  in  terms  negotiable;  and  any  holder  for  value,  before  the  blanks 
are  filled,  may  maintain  an  action  in  his  own  name  against  the  company. 
Chapin  t'.  Vermont  &  Massachusetts  Railroad  Co.,  8  Gray,  olo.  See  also 
White  r.  Vermont  &  Massachusetts  Railroad  Co.,  21  IIow.  5~o. 

An  auctioneer  who  sells  shares  at  public  auction  without  disclosing  tiie 
name  of  his  principal  makes  himself  personally  responsible  for  the  fulfilment 
of  the  contract  of  sale.  Franklyn  v.  Lamond,  4-  C.  D.  037;  Hodges  Raihv. 
119. 

^  Hodges  Raihv.  The  rule  has  been  thus  defined:  "If  a  share-broker, 
directed  to  buy  .shares,  buys  what  is  ordinarily  bought  and  .sold  in  the  stock- 
market  as  shares,  he  has  fulfilled  his  commission,  and  cannot  be  made  respon- 
sible for  the  fraud  or  misconduct  of  parties  who  may  have  issued  the  shares 

[*127] 


122  TEANSFER   OF   SHARES.  [PART   II. 

*  2.  Upon  the  latter  count  the  defendant  paid  into  court  the 
money  received  upon  the  original  sale,  with  interest. 

3.  It  was  held,  the  plaintiff  could  not  recover  upon  the  ground 
of  the  warranty,  there  heing  no  promise,  express  or  implied,  that 
the  certificates  were  genuine ;  and  that  under  the  other  count  he 
could  only  recover  the  money  paid  defendant. 

4.  It  was  also  held,  that  the  resolution  of  the  committee  of  the 
stock-exchange,  made  after  the  transaction  was  completed,  how- 
ever it  might  bind  the  members  of  that  body,  could  not  affect  the 
defendant.^  There  has  been  considerable  discussion  in  the  English 
courts,  as  we  have  seen,  in  regard  to  the  binding  effect  of  a  rule  of 
the  stock-exchange,  by  which  the  purchasing  broker  of  shares  is 
held  entitled  at  the  settling  day,  in  case  of  the  purchase  of  shares, 
to  bring  forward  a  responsible  party  to  whom  the  shares  are  to  be 
transferred,  and  thus  exonerate  himself  from  any  further  respon- 
sibility in  the  matter  ;  the  seller  being  bound  to  look  to  the  party 

without  authority.  There  is  no  warranty  or  undertaking,  on  the  part  of  the 
broker  employed  to  buy  shares  or  scrip,  that  the  article  which  merely  passes 
through  his  hands  is  anything  more  than  what  it  purports  on  its  face  to  be, 
and  what  it  is  generally  understood  to  be  in  the  market."  Addison  Con.  5th 
ed.  191.  But  if  a  broker  sell  stock-shares  or  debentures  for  an  undisclosed 
principal,  and  sign  the  sold  note,  he  is  responsible  for  any  loss  sustained  by 
the  purchaser  through  the  fraud  of  the  undisclosed  principal,  although  the 
purchaser  knew  that  he  was  dealing  with  a  broker.  Carr  v.  Royal  Exchange 
Insurance  Co.,  5  B.  &  S.  G66;  s.  c.  7i07n.  Royal  Exchange  Insurance  Co.  v. 
Moore,  11  W.  R.  592. 

There  is  no  good  reason  why  the  vendor  of  shares  in  a  joint-stock  company 
should  not  be  held  responsible  for  the  genuineness  of  the  article,  the  same  as 
any  other  vendor.  It  may  not  follow  that  either  of  the  brokers  of  the  con- 
tracting parties  could  be  so  held,  since,  in  general,  they  act  merely  in  a  repre- 
sentative capacity.  But  the  ultimate  vendor  must  be  responsible  on  an  implied 
warranty  to  that  extent.  And,  as  was  held  in  the  case  last  cited,  if  the  broker 
withholds  the  name  of  his  principal  he  thereby  assumes  that  responsibility 
personallj'. 

'■^  AVestropp  v.  Solomon,  8  C.  B.  345.  The  cases  in  this  country  would  be 
regarded,  probably,  as  favoring  the  view  that  on  such  a  sale  there  is  an  im- 
plied warranty  that  the  article  is  what  it  purports  to  be,  and,  consequently, 
that  the  seller  is  liable  to  pay  its  value  in  the  market  at  the  time  its  spurious- 
ness  is  discovered.  But  see  cases  collected  infra,  §  23.').  It  would  seem 
that  in  England  it  is  an  indictable  offence  for  persons  to  conspire  to 
fabricate  shares,  in  addition  to  the  number  of  which  a  company  consists,  in 
order  to  sell  them  as  good  shares,  notwithstanding  any  imperfection  in  the 
original  formation  of  the  company.  Rex  v.  Mott,  2  C.  &  P.  521;  infra,  §  37, 
note  3. 

[♦128] 


§  3G.]    SALE  OF  SPURIOUS  SHARES.  —  RULES  OF  STOCK  EXCHANGE.  123 

to  whom  the  shares  are  thus  transferred  for  inderaiiity  against 
future  calls,  provided  the  cumpuny  shall  decline  to  register  the 
transfer.  The  Court  of  Common  Pleas,'^  Byles  dissenting,  held 
the  custom  not  reasonable,  and  of  no  force.  But  this  judgment 
was  reversed  in  the  Exchequer  Chamber,'*  (a)  where  the  custtjm 
was  held  entirely  reasonable  and  binding.  The  courts  could 
scarcely  pronounce  so  convenient  and  universal  a  custom  to  be 
unreasonable. 

8  Grissell  v.  Bristowe,  Law  Rep.  3  C.  P.  112. 

*  Grissell  v.  Bristowe,  Law  Rep.  4  C.  P.  36.  It  seems  from  this  case,  and 
that  of  Torrington  v.  Lowe,  Law  Rep.  4  C.  P.  2G,  that  the  seller  has  no  remedy 
against  any  other  party  after  he  accepts  the  purchaser.  But  he  is  not  obliged 
to  accept  him,  unless  he  is  ready  to  pay  the  price  and  is  a  responsible  party, 
nor  if  he  is  a  non-resident  foreigner;  and  on  his  refusal  to  accept  him,  the 
broker  will  remain  personally  responsible  to  his  customer,  not  having  offered 
the  name  of  a  purchaser  against  whom  no  reasonable  objection  could  be  made. 
Allen  V.  Graves,  Law  Rep.  5  Q.  B.  478.  In  the  case  of  Mollett  v.  Robin- 
son, Law  Rep.  7  C.  P.  84;  s.  c.  20  W.  R.  544,  the  effect  of  custom  in  regard 
to  a  particular  trade  in  a  particular  city,  in  binding  persons  not  resident  at 
that  j)lace  or  shown  to  be  cognizant  of  the  custom,  was  fully  discussed  in  the 
Exchequer  Chamber,  by  six  of  the  judges,  who  were  equally  divided  on  the 
point,  and  who  therefore  gave  separate  opinions.  In  Maxted  v.  Paine,  Law 
Rep.  6  Exch.  132;  s.  c.  Law  Rep.  4  Exch.  203,  (n)  the  question  of  the  effect 
of  the  .seller  having  accepted  a  purchaser  not  responsible  for  future  calls  is 
extensively  considered,  and  all  the  cases  carefully  reviewed,  and  the  conclu- 
sion reached  that,  although  the  seller  may  not  be  bound  to  accept  an  irre- 
sponsible person  as  purchaser,  still,  if  he  do  accept  such  person,  he  cannot 
compel  the  broker  to  indemnify  him  against  loss.  See  also  Coles  v.  Bristowe, 
Law  Rf'p.  G  Eq.  149;  s.  c.  4  Cli.  Ap.  3;  Bowring  v.  Shepherd,  Law  Rep.  6 
Q.  B.  309;  supra,  §  33,  pi.  4,  and  note. 

(a)  Maxted  v.  Paine,  cited  in  note     infant  as  the  bnyer,  he  is  not  thereby 
4,  was  approved  in  Merry  v.  Xickalls,     exonerated  from  liability  to  indemnify 
Law  Rep.  7  Ch.  Ap.  733,  where  it  is    the    seller  from    new   calls  or  other 
held  that  where   the   broker  for  the    charges  on  the  shares. 
buyer  of  shares  gives  the  name  of  an 

[♦128] 


124  TRANSFER   OP   SHARES.  [PART  II. 

SECTION  VI. 

Readiness  to  perform. —  Custom  and   Usage. 


I 


1.  Vendor  must  be   ready  and   offer  to 

convey. 

2.  Veiidco  must  be  ready  to  pay  price. 

3.  General  custom  and  local  usage. 


n.  3.  Oral   evidence  to  explain  memo- 
randa of  contract. 
4.  The  party  taking  the  initiative  must 
prepare  the  writings. 


§  37.  1.  The  obligation  resting  upon  the  vendor  of  railway 
shares  is  to  have,  at  the  time  specified  in  the  contract  for  delivery, 
a  good  title  to  the  requisite  number  of  shares,  and  to  manifest  his 
readiness  to  convey,  which  is  usually  done  by  tendering  the  proper 
conveyance.  But  this  is  not  necessary.  Any  other  mode  of  show- 
ing readiness  is  sufificient.^ 

2.  The  corresponding  obligations  upon  the  vendee  are  readiness 
to  receive  the  proper  conveyance,  at  the  specified  time  and  *  place, 
and  to  pay  the  price,  and  it  would  seem  to  prepare  a  proper  con- 
veyance, and  tender  the  same  for  execution,  upon  having  a  good 
title  made  out.^ 

3.  But  the  incidents  of  such  contracts  are  liable  to  be  controlled 
by  general  and  local  customs,  and  usages  of  trade,  the  same  as 
other  similar  contracts.^     Hence  any  general  known  usage  of  those 

1  Humble  v.  Langstoii,  7  M.  &  W.  517;  s.  c.  2  Railw.  Cas.  533;  Hannuic 
V.  Coldiier,  11  M.  &  W.  819;  Hare  v.  Waring,  3  M.  &  W.  362;  Hibblewhite 
V.  M'iMorine,  2  Railw.  Cas.  51.  In  Munn  v.  Barnum,  24  Barb.  283,  it  is  held 
that  mere  readiness  to  transfer  is  sufficient  in  such  cases,  and  that  an  actual 
transfer  is  never  requisite  where  the  purchaser  declines  to  pay  the  price. 

2  Lawrence  i-.  Knowles,  5  Bing.  N.  C.  399;  Stephens  v.  De  Medina,  4 
Q.  B.  422;   Bowlby  v.  Bell,  4  Railw.  Cas.  G92. 

8  Stewart  v.  Canty,  2  Railw.  Cas.  G16;  8  M.  &  W.  IGO.  And  one  who 
employs  a  share-broker  at  a  particular  place  to  purchase  shares,  is  bound  by  a 
usage  affecting  the  broker  at  that  particular  place,  —  a  usage,  e.  g. ,  by  which 
the  seller  may  resell,  the  buyer  not  being  ready  to  pay,  and  collect  the  differ- 
ence of  the  broker.     Pollock  v.  Stables,  5  Railw.  Cas.  352;  s.  c.  12  Q.  B.  765. 

So  of  a  usage  by  which  the  vendor  having  paid  a  call  to  enable  him  to 
convey,  the  broker  must  pay  him,  and  resort  to  the  buyer  as  for  money  paid 
for  his  use.  Bayley  v.  Wilkins,  7  C.  B.  886.  And  it  would  seem  the  party 
is  bound  by  such  usage,  though  not  cognizant  of  it.  Bayliffe  v.  Butterworth, 
1  Exch.  425,  per  Parke  and  Rolfe,  BB.;  s.  c.  5  Railw.  Cas.  283;  Sutton  v. 
Tathani,  10  A.  &  E.  27. 

^^'llere  the  broker  could  not  obtain  the  certificate  of  shares  for  some 
[*129J 


§37.]  READINESS   TO    PERFORM.  —  CUSTOM    AND    USAGE.  125 

*  negotiating  similar  business,  and  whicli  may  be  fairly  presumed 
to  have  been  known  to  the  parties,  or  whicli  ought  to  have  been, 
and  *  any  local  custom,  or  usage  of  trade,  which  was  in  fact  kiujwn 
to  both  parties,  is  regarded  as  if  incorporated  into  the  contract, 
the  j)arties  being  j)resumed  to  have  contracted  with  reference  to 
it.3  But  it  may  be  questionable,  perhaps,  whether  the  custom  in 
regard  to  sales  of  stock  in  this  country,  would  require  tlie  pur- 
chaser to  be  at  the  sole  expense  of  preparing  the  proper  con- 
veyance. 

4.  It  is  safe,  perhaps,  to  say,  that  the  party  tendering  a  convey- 
ance, or  he  who  demands  it,  in  practice,  ordinarily  causes  the 
instrument  required  to  be  executed  to  be  prepared  in  the  one 
case  and  executed  in  the  other.  But  less  will  often  sufiicc,  where 
the  other  party  refuses  to  proceed.^ 

months,  on  account  of  tlie  delay  in  having  them  registered  by  the  company, 
and  in  the  mean  time  a  call  was  made  which  he  paid,  the  buyer,  having  from 
time  to  time  urged  the  forwarding  of  the  scrip  without  delay,  it  was  lield, 
should  not  repudiate  the  contract.  McEwen  v.  Woods,  11  Q.  B.  13;  5  Railw. 
Cas.  335. 

So  where  one  gave  a  broker  an  order  to  purchase  shares  at  a  time  when  no 
shares  were  in  the  market,  or  had  in  fact  issued,  but  when  letters  of  allotment 
were  commonly  bought  and  sold  as  shares,  and  the  plaintiff  bought  a  letter 
of  allotment  of  fifty  shares,  it  was  held  that  a  jury  might  find  that  this  was 
an  execution  of  the  order.  ^Mitchell  v.  Newhall,  15  M.  &  W.  308;  s.  c.  4 
Railw.  Cas.  300. 

And  where  the  broker  bought  scrip  certificates,  which  were  sold  in  the 
market  as  "  Kentish  Coast  Uaihvay  Scrip,"  and  signed  by  the  secretary  of  the 
company,  but  which  were  afterwards  repudiated  by  the  directors  as  having 
been  issued  by  the  secretary  without  authority,  it  was  held,  in  an  action  to 
recover  from  the  broker  the  price  paid  and  his  commissions,  that  the  proper 
question  for  the  jury  was,  whether  what  the  plaintiff  intended  to  buy  was 
not  that  which  went  in  the  market  as  "  Kentish  Coast  Railway  Scrip."  there 
being  no  other  form  of  that  scrip  in  the  market  at  the  time.  Lamert  r. 
Heath,  15  M.  &  W.  480;  s.  c.  4  Railw.  Cas.  302;  supra,  §  3(1. 

The  remarks  of  I^ord  Campbell.  C.  J.,  in  the  case  of  Ilumfroy  v.  Dale,  7  Ellis 
Sc  B.  266;  20  Law  Rep.  227,  in  regard  to  the  necessity  of  relaxing  tlie  rule  of 
the  admissibility  of  oral  evidence  to  explain  the  import  of  commercial  tcrm.s 
and  memoranda  in  written  contracts  between  merchants,  are  worthy  of  par- 
ticular attention. 

*  Waif.  Railw.  262,  note,  where  it  is  said,  "It  would  seem,  that  if  the  ven- 
dor fails  to  make  out  a  title,  this  dispenses  with  a  tender  of  conveyance."  But 
if  stock  is  to  be  delivered  on  demand,  it  is  necessary  to  show  an  actual  request 
to  deliver,  in  order  to  sustain  an  action  for  non-delivery.  Green  r.  Murray. 
6  Jur.  728.     Where  the  contract  is  to  deliver  stock  in  a  reasonable  time,  or  at 

[nso,  *i3ij 


126  TRANSFER   OF   SHARES.  [PART   II. 

*  SECTION  VII. 
Damages.  —  Specific  Performance. 


1.  Damages,  (lifTercnce  between  contract 

price  and  price  at  time  of  delivery. 

2.  Equity  will  decree  specific  performance 

of  contract  for  sale  of  shares. 


n.  (a)  When   like   shares    cannot    be 
obtained  elsewhere. 


§  38.  1.  The  damages  which  cither  party  is  entitled  to  recover, 
is  the  difference  between  the  contract  price  and  the  market  price, 
at  the  time  for  delivery,  or,  in  some  cases,  a  reasonable  time  after, 
which  is  allowed  either  party  for  resale  or  repurchase.^ 

no  specified  time,  which  the  law  regards  as  in  a  reasonable  time,  or  on  or  before 
a  day  named,  it  is  presumed  each  party  is  entitled  to  the  whole  time  in  which 
to  perform.  Stewart  v.  Cauty,  2  Railw.  Cas.  616;  s.  c.  8  M.  &  W.  160.  It 
seems  that  where  the  deed  of  settlement  requires  the  consent  of  the  directors 
to  the  validity  of  the  transfer  of  shares,  it  is  incumbent  on  the  vendor  to  ob- 
tain such  consent;  and  where  the  transfer  is  duly  made,  executed,  and  delivered, 
and  the  money  paid,  but  the  directors  refuse  to  give  their  asserit,  the  purchaser 
may  recover  the  money  paid,  and  the  return  of  the  transfer  will  be  deemed 
collateral  to  the  contract  of  purchase,  and  not  a  condition  precedent  to  the 
plaintiff's  right  to  recover.     Wilkinson  v.  Lloyd,  7  Q.  B.  27. 

And  where  the  charter  of  the  company  or  the  statute  prohibits  the  transfer 
of  the  shares  while  calls  remain  due,  a  deed  of  transfer  made,  while  calls 
remain  unpaid,  is  altogether  null  and  void,  so  that  the  company  may  refuse  to 
register  such  a  transfer,  though  the  calls  have  been  subsequently  paid.  It  is 
said  it  would  be  necessary  to  re-execute  the  deed,  after  the  payment  of  th« 
calls,  before  the  company  could  be  compelled  to  register  it.  Hodges  Railw., 
121,  122.  But  it  has  been  said,  that  if  a  deed  be  delivered  as  an  escrow  in 
such  case,  to  take  effect  when  the  calls  are  paid,  it  may  be  good.  Patteson,  J., 
in  Hall  v.  Norfolk  Estuary  Co.,  7  Railw.  Cas.  503;  s.  c.  8  Eng.  L.  &  Eq.  351. 
As  to  the  binding  effect  of  the  usages  of  the  stock-exchange,  see  Maxted  v. 
Taine,  17  W.  R.  886;  supra,  §  36,  pi.  4,  and  note  4. 

1  Barned  v.  Hamilton,  2  Railw.  Cas.  621;  Humble  v.  Mitchell,  11  A.  &  E. 
205;  s.c.  2  Railw.  Cas.  70;  Shaw  u.  Holland,  15  M.  &  W.  136.  But  the  purchaser 
is  not  entitled  to  recover  any  advance  in  the  market  price  of  such  shares,  after 
a  reasonable  time  for  repurchase.  Tempest  v.  Kilner,  2  C.  B.  300;  s.  c.  3  C  B. 
219.  See  also  Pott  v.  Flather,  5  Railw.  Cas.  85;  Williams  v.  Archer,  id.  289; 
8.  c.  5  C.  B.  318.  But  a  broker  is  not  entitled  to  commissions  unless  he 
completes  the  sale;  he  may,  however,  be  entitled  to  reimbursement  of  actual 
expenses.  Dnrkee  r.  Vermont  Central  Railroad  Co.,  29  Vt.  127.  In  aca.se  in 
the  Common  Pleas,  Loder  r.  Kekule,  3  C.  B.  n.  s.  128;  s.  c  30  Law  T.  64,  it 
was  decided,  that  for  breach  of  contract  by  delivery  of  an  inferior  article,  if 
the  article  was  one  that  could  be  immediately  sold  in  the  market,  the  damages 
[*13-2] 


§  .')8.]  DAMAGES. —  SPECIFIC    PERFORMANCE.  127 

2.  And  a  court  of  equity  will  decree  a  specific  performance  of 
a  ooiitrart  to  transfer  railway  shares,  but  not  for  the  transfer  of 
stock  in  the  funds,  as  any  one  may  always  obtain  that  in  the 
market,  but  railway  stock  is  not  always  ol)lainable.-(a)  This  sub- 
ject *  lias  l)een  lari^ely  discussed  in  the  Knulish  Court  of  Chancery 
Appeal,-*  and  the  same  rule  declared,  which  is  stated  above.  Jhit 
in  that  case  (he  ]ilaintiff  failed  to  obtain  a  decree,  for  the  reason 
that  he  had  already  conveyed  the  stock  to  the  defendant's  vendee, 
in  ignorance  that  the  defendant  was  the  real  purchaser ;  and  the 
matter  having  lain  by  for  a  whole  year,  it  now  seemed  impossible 
to  say  that  the  plaintiff  had  made,  or  could  make,  good  title  to  the 
stock,  which  is  always  an  insuperable  barrier  to  a  decree  for  spe- 
cific performance.  A  later  case  upon  the  subject  in  the  English 
Court  of  Chancery  Appeal  holds,  that  an  agreement  to  accept  a 
transfer  of  railway  shares,  on  which  nothing  had  been  paid,  was 
not  nudum  ijaetum,  but  a  contract  which  may  be  specifically  en- 
forced in  equity.    Lord  Chelmsford,  Chancellor,  in  delivering  his 

were  the  difference  between  the  market  value  of  the  article  delivered  and  that 
contracted  for.  But  wliere  the  article  cannot  be  immediately  resold,  as  where 
the  resale  is  delayed  by  the  defendant,  the  measure  of  damages  is  the  difference 
between  the  value  of  the  article  contracted  for,  at  the  time  and  place  of  delivery, 
and  the  amount  made  by  the  resale,  within  a  reasonable  time  of  the  delivery 
of  the  article.  See  also  Hand  v.  White  Mountain  Railroad  Co.,  40  N.  II.  79. 
It  is  here  said  that  such  a  contract  creates  no  debt,  attachable  by  process  of 
fdreign  attacliment,  but  is  merely  a  claim  for  unliquidated  damages.  And  see 
Hager  r.  Heed,  11  Ohio  St.  G2G,  where  the  general  question  of  the  enforcement 
of  contracts  to  tran.sfer  stock  is  considered,  and  the  effect  of  judgment  for  i\w 
price  without  an  actual  transfer  or  an  order  of  court  therefor. 

'^  Duncuft  V.  Albrecht,  12  Sim.  189;  Shaw  v.  Fislier,  2  De  G.  &  S.  11 ;  s.  r. 
5  Railw.  Cas.  401.  Leach  v.  Fobes,  11  Gray,  50G.  On  bills  in  the  English 
courts  for  specific  performance  of  contracts  to  transfer  stock  there  has  been 
most  controversy  as  to  the  sufficiency  of  the  proof.  See  Parish  v.  Parish,  32 
Beav.  207;  Bermingham  r.  Sheridan,  o3  Beav.  GGO;  s.  c.  10  Jur.  n.  s.  415. 

8  Shaw  I'.  Fisher,  5  De  G.  M.  &  G.  596;  Sullivan  v.  Tuck,  1  Md.  Ch.  59, 
112;  McGowin  v.  Remington,  12  Penn.  St.  5G.  See,  also,  upon  the  subject  of 
specific  performance  in  courts  of  equity,  Adams,  Eq.  (ed.  1859)  77-91,  and  cases 
cited;  Carpenter  v.  Insurance  Co.,  4  Sandf.  Ch.  408;  Lowry  i-.  Muldrow,  8  Rich. 
Eq.  241. 

(o)  Specific  performance  will  bo  de-  And  see  ^fonson  r.  Fonno,  129  Mass. 

creed  at  suit  of  the  purchaser  when-  405;    Baldwin   v.   Commonwealth.    11 

over  shares  similar  cannot  be  procured  Bush,  417.    Otherwise  of  course  where 

elsewhere.    Parish  r.  Parish,  32  Beav.  performance  is  impossible.     Ferguson 

207;  Beckitt  v.  Bilbrough,  S  Hare,  188.  v.  Wilson,  Law  Rep.  2  Ch.  Ap.  87. 

[•133] 


128 


TRANSFER   OF   SHARES. 


[part  11. 


judgment,  quotes  with  approbation  the  words  of  the  Vice-Chan- 
ccllor  of  England,  in  Duncuft  v.  Albrecht.  "  There  is  not  any  kind 
of  analogy,"  said  that  learned  judge,  "  between  a  quantity  of  three 
per  cent,  or  any  other  stock  of  that  description  (which  is  always 
to  be  had  by  any  person  who  chooses  to  apply  for  it  in  the  mar- 
ket,) and  a  certain  number  of  railway  shares  of  a  particular  de- 
scription, which  railway  shares  are  limited  in  number,  and  which 
are  not  always  to  be  had  in  the  market."  We  regard  this  as  the 
latest  authoritative  declaration  of  the  English  equity  courts  upon 
the  subject.*  So  it  was  held,  that  a  court  of  equity  will  decree 
a  specific  performance  against  a  railway  company  of  a  contract  to 
take  land  and  pay  a  stipulated  price.^ 


*SECTION    VIII. 


Specific  Performance. 


1.  Specific  performance  decreed  against 

the  vendee. 

2.  This  was  denied  in  the  early  cases. 


3.  Owner  of  original  shares  may  transfer 

them. 

4.  Specific     performance     not     decreed 

where  not  in  the  power  of  the  party. 


§  39.  1.  It  is  considered,  under  the  English  statutes,  that  the 
purchaser  of  shares  in  a  railway  is  bound  to  execute  the  assign- 
ment on  his  part,  procure  himself  to  be  registered,  pay  all  calls 
intervening  the  assignment  and  the  registration  of  his  name  as 
a  shareholder,  and  indemnify  the  seller  against  future  calls,  and 
upon  a  bill  filed  for  that  purpose,  it  was  so  decreed. ^ 


*  Cheale  v.  Kenward,  3  De  G.  &  J.  27.  There  has  been  a  similar  decision 
by  the  Supreme  Court  of  Massachusetts.  Leach  v.  Fobes,  11  Gray,  506;  s.  p. 
Toddr.  Taft,  7  Allen,  371. 

^  Inge  V.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railway  Co.,  3  De  G. 
M.  &  G.  658;  s.  c.  23  Eng.  L.  &  Eq.  601 ;  infra,  §  213.  So  also  in  their  favor, 
Old  Colony  Railroad  Co.  v.  Evans,  6  Gray,  25.  And  the  fact  that  the  price 
of  shares  has  unexpectedly  fallen  in  the  market  will  not  preclude  a  decree  for 
specific  performance.  Hawkins  v.  Maltby,  17  W.  R.  557;  s.  c.  Law  Rep. 
4  Ch.  Ap.  200;  approving  case  between  same  parties,  10  id.  209;  overruling 
same  case,  15  id.  1075;  Price  v.  Denb.,  R.,  &  C.  Railway  Co.,  17  id.  572. 

^  Wynne  v.  Price,  3  De  G.  &  S.  310;  s.  c.  5  Railw.  Cas.  465;  Shaw  v.  Fisher, 
2  DerG.  &  S.  11;  s.  c.  5  De  G.  M.  &  G.  596.  These  cases  were  decided  by 
[•134] 


§39.]  SPECIFIC  perfoumancf:.  129 

2.  But  in  some  of  the  earlier  cases,  very  .similar  in  princiide, 
the  Court  of  Chancery  declined  to  interfere,  and  the  opinion  is 
very  distinctly  intimated  that  the  law  implied  no  undertakinjr,  on 
the  part  of  the  purchaser  of  railway  shares,  to  assume  the  position 
and  burdens  of  the  seller.^ 

3.  In  the  case  of  Jackson  v.  Cocker  a  query  is  started  by  the 
*  Master  of  the  Rolls,  upon  the  authority  of  Josephs  v.  Pebrer,'^ 
whether  a  contract  by  which  the  original  subscribers  of  shares 
in  a  railway  company  stipulate  to  be  relieved  from  their  under- 
taking, and  to  substitute  another  party  in  their  place,  is  to  be  re- 
garded as  legal  ?  But  the  case  referred  to  was  decided  upon  the 
ground  that  the  concern  then  in  question  was  illegal  in  itself, 
within  the  English  statute,"*  as  having  transferable  shares,  and 
affecting  to  act  as  a  body  corporate,  without  authority  by  charter 
or  act  of  parliament. 

4.  The  Court  of  Chancery  will  not  decree  specific  performance 
against  a  railway  company  which  promised  to  allot  shares  to  the 
plaintiff,  especially  where  it  appears  such  shares  have  been  given 
to  others.^  A  court  of  equity  will  never,  it  seems,  decree  spe- 
cific performance  against  a  party,  where  it  is  not  in  his  power 
to  perform,  although  such  incapacity  be  the  result  of  his  own 

Vice-Chancellor  Knight  Bruce,  and  are  obviously  .somewhat  at  variance  with 
the  principles  assumed  in  Humble  v.  Langston,  7  M.  &  W.  517.  Tlie  learned 
judge  here  seems  to  have  felt  a  just  indignation  that  any  defence  was  attempted 
in  such  a  case.  "  The  defence,"  says  he,  "  was  without  apology  or  excuse." 
And  in  the  case  of  Jacques  v.  Chambers,  2  Coll.  C  C.  435;  4  Kuilw.  Cas.  490, 
wiiere  a  testator  possessed  of  fifty  original  shares  and  seventy  purchased 
shares,  calls  upon  which  had  not  all  been  made,  by  his  will  gave  thirty  shares 
to  trustees,  for  A.,  and  thirty  shares  to  B.,  and  twenty-five  original  and  five  pur- 
chased shares  were  allotted  by  the  executors  to  each  of  the  legatees,  the  same 
judge  held  that  the  testator's  estate  was  liable  to  pay  the  calls;  and  a  sum 
to  pay  the  unpaid  calls  was  ordered  to  be  placed  to  a  separate  account,  and 
laid  out,  and  the  income  meanwhile  i>aid  to  those  entitled  to  the  general 
residue.  This  case  was  decided  on  the  autliority  of  Blount  v.  Ilipkins,  7 
Sim.  4:^,  51,  which,  it  was  said,  could  not  be  substantially  distinguished  as 
regarded  either  .set  of  shares.  See  al.so  l^uncuft  v.  Albrecht,  \'l  Sim.  189. 
But,  as  before  .'^aid,  it  is  well  .settled,  that  tlie  courts  in  England  will  not 
decree  specific  peiformance  of  a  contract  to  sell  public  stocks,  which  may 
always  be  had  in  the  market.     Xulbrown  v.   Thornton, 10  Ves.  159. 

-  Jackson  v.  Cocker,  2  Railw.  Cas.  3GS;  s.  c.  4  Beav.  59. 

8  3  B.  &  C.  G39.  *  Statute  G  Geo.  1,  c.  18. 

*  Columbine  v.  Chichester,  2  Phillips,  27. 
VOL.  I.- 9  [*135] 


130 


TRANSFER    OF    SHARES. 


[part   II. 


fault.  But  will,  in  such  case,  leave  the  other  party  to  his 
remedy  at  law,  by  way  of  damages,  which  is  all  the  redress  that 
remains.^  (a) 


*  SECT  ION  IX. 


Trustee  entitled  to  Indemnity  against  future  Calls. 


1.  Trustee  entitled  to  indemnity,  on  gen- 

eral principles. 

2.  English   courts  hesitated  in  regard  to 

railway  shares. 

3.  4.  Cases  reviewed. 

5.  Mortgagees  liable,  as  stockholders,  for 
the  debts  of  the  company. 


6.  Ostensible  owner  must  respond  to  all 

responsibilities. 

7.  Executors  responsible  personally. 

8.  Mortgagor  is   entitled  to   redeem  on 

restoring  the  sliares  as  stipulated  in 
his  deed. 


§  40.  1.  It  seems  to  be  regarded  as  the  general  rule  of  chancery 
law,  that  the  trustee  of  property  is  entitled  to  indemnity  for  ex- 
penses bona  fide  incurred  in  the  management  and  preservation  of 
the  trust-fund,  or  estate,  either  out  of  the  property  or  as  a  personal 
duty  from  the  cestui  que  trust,  in  most  cases.^ 

2.  We  apprehend  there  is  no  good  reason  why  this  principle 
should  not  receive  a  general  application  to  the  case  of  shares  in  a 
irailway  company,  held  as  security  for  debt,  by  way  of  mortgage 
or  pledge.     And  it  would  seem,  that  no  serious  question  coidd  ever 

8  Greenaway  v.  Adams,  12  Ves.  395,  400;  Varick  v.  Edwards,  11  Paige,  289. 
In  the  case  of  Miller  r.  Illinois  Central  Railroad  Co.,  24  Barb.  312,  where  the 
company,  by  its  treasurer,  gave  a  receipt  for  money,  to  be  repaid  with  interest 
on  demand,  or  received  in  payment  of  stock,  to  be  issued  to  them  or  their 
assigns  when  the  directors  should  authorize  the  issue  of  more  stock,  it  was 
held  that  the  holder  of  such  receipt  had  only  an  option  to  take  the  shares  or 
the  money,  and  that  he  could  not  claim  to  be  a  holder  of  stock,  or  to  liave  any 
right  thereto,  until  he  had  given  notice  of  his  election  to  take  stock.  And 
an  assignee  of  such  holder,  who  took  the  receipt  as  collateral  security,  was 
held  in  the  circumstances  to  have  no  better  right. 

1  Murray  v.  De  Rottenham,  6  .lohns.  Ch.  52,  67  ;  Green  v.  Winter,  1  Johns. 
Ch.  27;  Watts  v.  Watts,  2  McCord,  Ch.  82;  Myers  v.  Myers,  2  :\IcCord,  Ch. 
2G4;  McMillan  v.  Scott,  1  (?)  Monr.  151;  Morton  v.  Barrett,  22  Me.  257; 
Draper  v.  Gordon,  4  Sandf.  Ch.  210;  Egbert  v.  Brooks,  3  Ilarring.  Del  (?) 
110;  Methodist  Episcopal  Church  v.  Jaques,  1  Johns.  Ch.  450;  Story  Bailm., 
§§  300,  30Ga   357   358. 


[*136] 


(a)  See  supra,  §  38,  note  (a). 


§  40.]  INDEMNITY    AGAINST    FUTURE   CALLS.  131 

have  arisen  upon  the  subject,  but  for  the  strange  inconsistencies 
into  which  the  English  courts  and  judges  have  been  led,  by  at- 
tempting, for  so  long  a  period,  to  maintain  the  doctrine  laid  down 
in  Ilumblo  v.  Langston,^  but  which  is  now  effectually  overruled 
ill  the  tribunal  of  last  resort.^ 

3.  But  we  shall  refer  briefly  to  the  decisions  upon  this  point,  in 
regard  to  railway  shares  and  stock,  in  other  similar  companies. 
It  was  held,  by  Wigram,  Vice-Chancellor,*  that  where  there  was 
*  a  contract  for  retransfer,  claimed  by  the  mortgagor,  or  found  in 
express  terms  in  the  contract  of  pledge  or  mortgage,  or  inferable 
from  circumstances,  this  was  sufficient  ground  for  implying  a 
contract,  by  the  mortgagor,  to  indemnify  the  mortgagee  against 
liability  to  the  creditors  of  the  company  for  debts  incurred,  Avhile 
his  name  remained  upon  the  register  of  shares  as  owner,  and  a 
decree  was  made  accordingly. 

4.  The  same  learned  judge,  in  the  same  case,  considered,  that 
where  the  mortgage  was  made  simply  as  an  absolute  transfer, 
subject  to  redemption,  and  nothing  had  passed  binding  the  mort- 
gagor to  take  a  retransfer  of  the  shares,  the  mortgagor  was  not 
bound  to  indemnify  the  mortgagee  against  debts  incurred  after  the 
transfer  made  in  the  mortgage,  and  before  the  mortgage  debt  Avas 
paid  off.  But  it  is  here  maintained,  that  tlie  mortgagee  has  not  in 
such  case  any  vight,  at  law,  against  the  mortgagor,  as  to  payments 
which  he  has  been  compelled  to  make  while  he  remained  the 
ostensible  owner  of  the  sluires,  even  where  a  contract  for  retrans- 
fer is  shown.  But  an  English  writer  u])on  this  subject  ^  seems 
to  incline  to  the  opinion  that,  in  such  case,  an  action  of  trespass 
on  the  case  might  be  maintained  against  the  purchaser  of  shares 
who  fails  to  cause  his  name  to  be  registered  as  owner,  or  to  in- 
demnify the  seller  against  liabilities  after  the  sale.     And  the  same 

«  7  M.  &  W.  517. 

8  Walker  v.  Bartlett,  18  C.  B.  81-5;  s.  c.  3G  Eiig.  L.  &  Eq.  3G8.  See  also 
Paine  v.  Ihitchiiison,  Law  Rep.  3  Eq.  2.37. 

*  Pheiie  V.  Gillan,  5  Hare,  1.  In  tlii.sca.se,  it  was  held,  that  where  the 
mortgagor  is  entitled  to  claim  a  retransfer  of  .sliares  standing  on  the  register  in 
tiie  name  of  the  mortgagee,  the  debt  being  paid,  he  is  entitled  to  take  proceed- 
ings  in  the  name  of  the  mortgagee  to  compel  such  retransfer,  giving  the  proper 
indemnity  for  costs.  And  either  the  company  or  the  directors,  who  have  pre- 
vented the  shares  from  being  transferred,  are  proper,  and,  it  would  seem, 
ueccssary  parties  to  the  bill. 

6  Hodges  Raihv.,  122. 

[*137] 


132  TRANSFER   OF   SHARES.  [PART   11. 

principle  will  apply  to  the  mortgagee,  after  the  debt  is  paid.  But 
all  these  refinements  must  now,  we  think,  be  regarded  as  effectu- 
ally abrogated,  by  the  virtual  abandonment,  by  the  English  courts, 
of  the  rule  laid  down  in  Humble  v.  Langston,  and  tlie  recognition 
of  the  contrary  doctrine. 

5.  It  has  been  held,  in  this  country,  that,  where  B.  being  in- 
debted transferred  shares  to  his  creditors,  as  security,  with  the 
power  of  sale,  and  upon  condition  that  the  shares  should  be  re- 
turned or  accounted  for,  whenever  the  debt  should  be  paid,  the 
debt  being  paid  off,  and  an  informal  power  of  retransfer  given  the 
mortgagor,  and  subsequently  a  more  formal  one,  the  mortgagees 
were  to  be  regarded  as  stockholders,  until  the  actual  retransfer  of 
the  shares,  and  as  such  liable  to  the  creditors  of  the  company, 
under  the  charter.^  As  the  case  of  Humble  v.  Langston  is  not  in 
*  terms  overruled,  although  it  is  in  principle,  we  think,  we  here  in- 
sert the  substance  of  the  opinion  of  the  court  in  Walker  v.  Bart- 
lett,  as  showing  the  present  state  of  the  English  law  on  the 
subject.'' 

*  Adderly  v.  Storm,  6  Hill,  624.  Bronson.  J.,  there  argues  the  liability 
of  the  mortgagees  to  the  creditors  of  the  company,  while  their  names  re- 
mained on  the  books  of  the  company  as  absolute  shareholders,  on  the  ground 
that  "  they  might  receive  dividends,  vote  at  elections,  and  enjoy  all  the  rights 
pertaining  to  the  ownership  of  the  property,  and  with  the  privileges  they 
must  take  the  burdens  of  a  stockholder."  A  query  is  here  started  whether  a 
retransfer  to  the  mortgagor  of  the  shares,  on  the  payment  of  the  debt,  might 
not  release  the  mortgagee.  "  The  assignment,  as  between  the  parties  to  it, 
would  have  passed  the  legal  interest  in  the  stock."  But  are  the  creditors  of 
the  company  bound  to  iook  beyond  the  register  of  shares?  Rosevelt  i'.  Brown, 
11  N.  Y.  148;  Worrall  v.  Judson,  5  Barb.  210;  Stanley  v.  Stanley,  26  Me. 
191.  In  Adderly  v.  Storm,  supra,  it  is  intimated,  that  a  fraudulent  transfer 
of  stock  by  a  solvent  owner  to  an  insolvent  person,  for  the  purpose  of  avoiding 
liability  to  tlie  creditors  of  the  company,  might  not  avail,  even  at  law. 

'  "  The  case  of  Wynne  v.  Price,  3  De  G.  &  S.  310,  shows  that  in  equity  the 
plaintiff  would  be  entitled,  under  the  circumstances  of  the  present  case,  to 
indemnity ;  but  it  was  contended  for  the  defendant,  that,  however  the  case 
might  be  in  equity,  there  was  no  contract  for  indemnity  to  be  implied  by  law; 
and  the  case  of  Humble  v.  Langston,  7  M.  &  AV.  517,  was  relied  upon  as  a 
direct  authority  against  the  plaintiff  upon  this  point;  and  the  Court  of 
Common  Pleas,  in  the  judgment  appealed  against,  considered  that  it  was 
bound  by  that  decision,  though  it  was  intimated  that  but  for  that  express  de- 
cision their  own  judgment  might  have  been  different.  It  must  be  admitted 
that,  in  principle,  no  substantial  difference  can  be  taken  between  tliat  case 
and  the  present,  except  this,  that  in  Humble  v.  Langston  the  plaintiff  claimed 
[*138] 


I 


§  40.]  INDEMNITY    AGAINST    FUTURE    CALLS.  133 

*  G.  It  seems  most  unquestionable  that  a  trustee  may  be  made 
liable  for  assessments  or  calls  upon  the  shares  standing  in  his 

to  be  indemnified  by  the  defendant  against  all  future  calls,  even  though  made 
after  the  defendant  had  himself  transferred  the  shares  to  other  persons;  and 
the  Court  of  Excliequer,  at  the  end  of  ^the  judgment,  observes,  that  if  there 
were  any  analogy  in  principle  between  the  case  of  Hurnett  r.  Lynch,  and  that 
before  tlie  court  tlie  defendant's  implied  promise  would  only  be  to  indemnify 
against  such  calls  as  should  be  made  while  he  was  beneficially  interested, 
whereas  the  plaintiff  Humble  claimed  an  indemnity  against  calls  made  after 
the  defendant  had  parted  with  his  interest.  This,  no  doubt,  is  a  very  impor- 
tant distinction;  and  though  the  Court  of  Exchequer  expresses  an  opinion 
that  there  was  no  contract  of  indemnity  at  all,  it  adverts  to  the  difference 
between  a  claim  to  indemnify  during  the  time  the  defendant  is  beneficially 
interested,  and  a  claim  to  be  indemnified  after  he  has  ceased  to  be  interested. 
The  circumstances  of  the  present  case  are,  therefore,  distinguishable  from 
those  in  Humble  v.  Langston,  and  it  consequently  is  not  so  direct  an  author- 
ity against  the  plaintiff's  claim  in  the  present  case,  as  at  first  sight  it  might 
appear  to  be. 

"  It  seems  to  us,  therefore,  that  the  circumstances  of  this  case  bring  it  di- 
rectly within  the  principle  upon  which  Burnett  v.  Lynch  was  decided.  In  the 
present  case  the  defendant  entered  into  no  express  agreement  to  pay  calls  or 
indemnify,  but  he  accepted  the  only  transfer  the  plaintiff  could  give,  and  which 
invested  him  with  full  power  to  become  the  registered  owner  of  the  shares 
when  he  pleased.  That  transfer  expressed  that  the  transferee  took  them  sub- 
ject to  the  same  rules  as  those  under  which  the  plaintiff  held  them,  one  of 
which  was,  that  the  registered  owner  should  pay  the  calls.  It  could  hardly 
liave  been  the  intention  of  the  parties,  that  if  the  defendant,  for  his  own  bene- 
fit, omitted  to  make  a  perfect  transfer,  by  registration  in  the  company's  books, 
the  jilaintiff  should  still  continue  to  pay  the  calls;  and  if  that  was  not  the 
intention,  was  it  not  understood  between  them  that  the  defendant  should 
save  the  plaintiff  harmless  from  any  calls  made  during  the  time  when  he  was 
virtually  owner  of  the  shares? 

"  In  Burnett  v.  Lynch,  a  lea.se  had  been  granted  to  Burnett,  in  which  he 
covenanted  to  pay  the  rent  and  repair  the  premises;  his  executors  assigned 
the  lease  to  Lynch,  subject  to  the  performance  of  the  covenant,  but  without 
any  express  covenant  or  contract  by  him  that  he  would  pay  the  rent  or  perform 
the  covenant.  The  executors  were  called  upon  by  the  landlord,  and  obliged 
to  pay  damages  for  not  repairing,  according  to  the  covenant,  during  the  time 
Lynch  was  assignee;  the  executors  brought  an  action  on  the  c;ise  against 
Lynch,  founded  on  a  breach  of  duty  in  not  repairing.  In  giving  judgment 
for  the  plaintiffs,  Abhott,  C  J.,  says,  '  It  is  true,  the  defendant  entered  into 
no  express  covenant  or  contract  that  he  would  pay  the  rent  or  perform  the  cove- 
nants; but  he  accepted  the  assignment  subject  to  tiie  performance  of  the 
covenants;  and  we  are  to  consider  whether  any  action  will  lie  against  him. 
If  we  should  hold  that  no  action  will  lie  against  him,  the  consequence  will 
follow,  that  a  man  having  taken  an  estate  from  another,  subject  to  the  pay- 
ment of  rent  and  performance  of  covenants,  and  having  therebv  induced  an 

i«i3yj 


134  TRANSFER   OF   SHARES.  [PART   II. 

name,  beyond  the  amount  of  the  trust  property.^  And  the  trans- 
feree of  shares,  having  taken  upon  himself  the  position  and  attitude 
of  owner,  cannot  be  allowed  to  excuse  himself  from  responsibility 
by  pleading  irregularity  in  transfers,  and  it  makes  no  difference  in 
this  respect  whether  he  hold  as  trustee  or  bcheficially. 

7.  Thus  where  reserved  shares  were  offered  to  the  shareholders 
and  the  executors  of  such  as  are  deceased,  in  proportion  to  the 
original  shares,  it  was  held  that  executors  who  accept  shares  must 
*  be  placed  upon  the  list  of  contributories  in  their  own  right,  and 
not  in  their  representative  capacity.^ 

8.  "Where  the  owner  of  shares  in  the  public  stocks,  or  in  joint- 
stock  companies,  sells  the  same  to  raise  money,  and  loans  the 
money  upon  mortgage  of  real  property,  with  conditions  for  having 
the  shares  replaced,  at  a  given  time,  which  is  not  done,  but  the 
mortgage  continued,  the  court  will  allow  the  redemption  of  the 
mortgage  upon  retransfer  of  the  shares  stipulated,  at  the  price  on 
the  day  of  the  decree,  although  the  funds  had  f alien. ^"^ 

undertaking  in  the  other  that  he  would  pay  the  rent  and  perform  the  cove- 
nants, will  be  allowed  to  cast  that  burden  upon  the  other  person.  Reason 
and  common  sense  show  that  that  never  could  be  intended.'  He  then  goes  on 
to  say,  that  though  an  action  on  the  case  would  lie,  there  might  also  be  an 
action  of  assumpsit. 

"  With  the  distinction  of  circumstances  to  which  we  have  already  adverted 
between  this  case  and  that  of  Humble  v.  Langston,  we  think  that  the  princi- 
ple upon  which  the  case  of  Burnett  ».  Lynch  was  decided,  is  directly  appli- 
cable to  the  present  case,  and  that  the  plaintiff  is  entitled  to  make  the  rule 
absolute  to  set  aside  the  nonsuit,  and  enter  a  verdict  upon  the  first  count  of 
the  declaration  and  so  much  of  tlie  pleas  as  may  be  applicable  to  that 
count." 

8  Ex  parte  Hoare,  2  Johns.  &  H.  229;  s.  c.  8  Jur.  n.  s.  713. 

9  Fearnside  &  Dean's  Case,  Law  Rep.  1  Ch.  Ap.  231. 

10  Blyth  V.  Carpenter,  12  Jur.  n.  s.  SUS;  s.  c  Law  Rep.  2  Eq.  501. 

[*140] 


^  41.]  PRACTICES    TO    IIAISE    TUi:    J'UICE    OF    .SHAKES.  135 

SECTION   X. 
Fraudulent  Practices  to  raise  the  Price  of  Shares. 

1.  Courtsnf  equity  will  vacate  sales  wliere  '  acted   hortci  Jidc,  Mu\css   tlie   sliares 

j)rice  of  shares  is  raised  by  fraudu-  were  valueless. 

lent  practices.  G.  INIaiiagers   of   company  liable  in  tort 

2.  Necessary  parties.     E.xtent  of  relief.       |  to  party  injured. 

3.  4.  Declaration  of  dividends,  none  be-  ,  7.  Purchase  of   sliares  in  another   com- 


ing earned,  e.  g.,  will  vacate  sales, 
and    subject    directors    to    indict- 
ment. 
6.  Equity  will  not  interfere  where  vendor 


pany  considered. 
8.  Bona  fide  purchaser  of   sliares  fraudu- 
lently issued  acquires   same  riglits 
as  other  shareholders. 


§  41.  1.  All  fi-audulent  practices,  cither  of  the  shareholders  or 
directors,  resorted  to  for  the  purpose  of  raising  the  price  of  shares 
in  the  market,  where  sales  have  hecn  induced  in  faith  of  the  truth 
of  such  representations,  will  be  relieved  again.st  in  a  court  of 
equity.^  («)     As  where  the  directors  of  a  joint-stock  company,  in 

^  Stainbank  i'.  Fernley,  9  Sim.  556.  And  in  a  more  recent  case,  Lefever  v. 
Lefever,  30  N.  Y.  27,  the  plaintiff,  a  director  in  a  bank,  who  had  been  such 
from  its  organization,  who  usually  attended  the  meetings,  and  was  actually 
present  and  took  part  in  the  proceedings  of  the  board  of  directors  when  tlio 
last  dividend  was  declared,  having  purchased  from  the  cashier  twenty 
shares  of  stock,  brought  an  action  to  have  the  contract  rescinded,  and  to 
recover  back  the  money  paid,  on  the  ground  of  false  representations  and 
concealments  by  the  cashier  as  to  the  value  of  the  stock  and  the  condition 
of  the  bank  at  the  time  of  the  purchase.  It  was  held  that  he  was  not 
estopped  from  setting  up  his  actual  ignorance  of  the  condition  of  the  bank 
at  the  time  of  the  sale;  that  although  lie  was  a  director,  having  the  means  of 
knowledge,  he  was  not  in  the  particular  transaction  chargeable  with  notice  of 
tlie  condition  of  the  bank;  that  if  he  was  actually  ignorant  of  its  condition, 
the  fraudulent  vendor  would  be  responsible  to  him  for  the  deceit,  as  to  a 
stranger;  and  that  it  was  not  a  case  in  which  the  plaintiff  was  legally  bound 
to  know  the  truth  or  falsity  of  the  vendor's  representation.s. 

In  the  case  of  Smith  v.  Reese  River  Silver  Mining  Co.,  Law  Rep.  2  Kq. 
264;  s.  c.  12  Jur.  n.  s.  G16,  where  a  person  was  induced  to  take  shares  in  a 
company  on  faith  of  a  statement  in  the  prospectus  as  to  the  nature  of  the 
property,  •which  statement  the  promoters  had  no  ground  for  believing  to  be 
true,  and  which  turned  out  to  be  untrue,  it  was  held,  that  he  was  entitled  to  an 
injunction  restraining  the  company  from  enforcing  calls  against  him,  although 

('0  Redford  r.  Bagshaw,  2!)  Law  3  Macq.  A]\  Cas.  783;  Crossr.  Sackett, 
Jour.  Exch.  59;  Davidson  v.  TuUoch,     2  Bosw.  617. 

[*140J 


136  TRANSFER   OF   SHARES.  [PART   II. 

order  *  to  sell  their  shares  to  advantage,  represented  in  their 
reports,  and  by  their  agents,  that  the  affairs  of  the  company  were 
in  a  very  prosperous  state,  and  declared  large  dividends,  at  a  time 
when  the  affairs  of  the  company  were  greatly  embarrassed. 

2.  A  person  who  had  been  induced  by  these  means  to  purchase 
shares  of  one  of  the  directors,  filed  a  bill  against  that  director, 
praying  to  be  paid  his  purchase-money  and  offering  to  retransfer 
the  shares  ;  a  demurrer  for  want  of  equity,  and  because  all  the  other 
partners  in  the  transaction  ought  to  have  been  made  parties,  was 
overruled.  But  where  a  bill  was  filed  against  the  public  officer  of 
a  joint-stock  bank,  charging  a  similar  fraud,  through  the  fraudu- 
lent representations  of  the  directors,  in  their  reports,  as  to  the 
prosperous  state  of  the  company's  affairs,  and  that  the  plaintiff 
had  thereby  been  induced  to  purchase  five  hundred  shares  in  the 
bank,  and  praying  that  the  sale  might  be  declared  void  as  between 
him  and  the  company,  and  that  they  might  be  decreed  to  repay 
tlie  purchase-money,  it  was  held,  that  as  the  litigation  was  between 
one  member  of  the  partnership  and  the  other  members,  the  public 
*  officer  was  improperly  made  a  party,  as  representing  the  company, 
and  a  demurrer  was  allowed.^  But  in  a  case  before  the  Court 
of  Chancery  Appeal,  it  was  decided  that  the  directors  of  a  railway 
company  are  in  the  position  of  trustees,  and  if  the  purchaser  has 
not  by  his  own  conduct  affected  his  rights,  the  company  cannot,  as 
against  him,  retain  money  acquired  from  a  fraudulent  sale  of  their 

the  articles  of  association  to  which  the  prospectus  referred  wonld  hare  informed 
the  purchaser  that  the  statement  in  the  prospectus  was  not  justified. 

But  one  who  claims  to  be  injured  by  such  fraudulent  practices  of  directors 
and  other  agents  of  corporations  must  bring  his  action  for  relief  at  the  earliest 
practicable  opportunity  after  having  learned  the  probable  fact  of  such  fraudu- 
lent practices.  Clarke  v.  Dickson,  1  Ellis,  B.  &  E.  148;  s.  c.  5  Jur.  x.  s.  1029; 
Jn  re  Hop  &  Malt  Co.,  Law  Rep.  1  Ecj.  483.  One  who  purchases  upon  the 
facts  stated  in  a  prospectus  must  be  held  to  have  notice  of  facts  stated  in 
other  documents  expressly  referred  to,  unless  there  are  special  grounds  for  pre- 
suming the  contrarj'.  lb.  See  also  Ex  parte  Briggs,  12  Jur.  x.  s.  322;  s.  c. 
Law  Rep.  1  Eq.  483. 

2  Seddon  v.  Cotmell,  10  Sim.  58.  It  was  further  held,  that  it  is  not  com- 
petent for  the  party  to  file  a  bill  against  the  company  and  some  of  the  direc- 
tors, praying,  that  if  he  is  not  entitled  to  relief  against  the  company,  he  may 
have  it  against  the  directors;  and  that  such  a  bill  is  demurrable,  on  the 
ground  that  the  prayer  for  relief  should  be  absolute,  for  relief  against  the 
directors,  in  order  to  maintain  the  bill  against  them.  But  it  is  not  necessary 
to  make  all  the  parties  to  a  fraud  defendants  in  a  bill  for  relief. 
[*141,  *142] 


§  41.]  PRACTICES   TO    RAISE   THE   PRICE   OF   SHARES.  1S7 

property  to  liim,  throngli  the  false  representations  of  their  direc- 
tors. J>ut  the  court  held  that  the  plaintiff  was  not  entitled  to 
a  decree  aj^ainst  the  directors,  hut  was  entitled  to  a  decree 
against  the  company  for  his  money  and  interest.^  And  it 
seems  to  he  settled,  by  the  decision  of  the  House  of  Lords,  that  in 
En.irland  and  in  Scotland,  for  any  fraudulent  act  done  by  the  di- 
rectors, without  the  range  of  the  powers  of  the  company,  whereby 
third  persons  suffer  damage,  they  arc  personally  liable  to  an  ac- 
tion :  but  for  all  such  acts  within  the  power  of  the  body  of  the 
shareholders  to  sanction,  although  the  directors  might  not  have 
been  justified  in  what  they  were  doing,  there  could  be  no  right  of 
action.'*  And  a  director  cannot  screen  himself  from  responsibility 
for  any  imposition  which  is  brought  upon  others  by  means  of  tlic 
circulation  of  a  prospectus  through  his  instrumentality,  upon  the 
ground  that  the  document  is  capable  of  a  construction  by  which  it 
may  be  regarded  as  true.  It  is  for  the  jury  to  say  whether  that  is 
the  natural  sensc.^  And  it  is  not  necessary  that  there  should  have 
been  any  direct  communication  between  the  plaintiff  and  defend- 
ant in  order  to  subject  the  defendant  to  an  action  for  false  repre- 
sentation. If  the  defendant  authorized  the  circulation  of  the 
prospectus  before  the  public,  containing  false  representations,  by 
*  which  the  plaintiff  was  misled,  it  is  the  same  as  if  the  defendant 
had  made  such  rejiresentations  to  hhii  personally.^  And  the  fact 
that  other  inducements  were  also  held  out  to  jdaintiff  by  other  par- 
tics  by  which  he  was  partially  influenced,  will  not  excuse  the  de- 
fendant.^' But  the  representation  of  an  olTicer  of  the  company  as  to 
the  effect  of  deeds,  which  it  forms  no  part  of  his  duty  to  expound, 
will  not  release  the  party  executing  the  deed  from  his  liability.^ 

3.  The  declaring  of  dividends  by  the  directors,  where  none 
have  been  earned,  if  done  by  them  for  the  purpose  of  fictitiously 
enhancing  the  price  of  shares,  for  their  own  benefit,  is  regarded 
as  such  a  fraud  as  will  relieve  a  party  who  has  purchased  shares 
in  faith  of  such  facts,  at  prices  greatly  beyond  their  value,"  and 
the  transfer  of  the  shares  will  be  set  aside. 

*  Conybcare  r.  Now  Brunswick  &  Canada  Railway  &  Land  Co.,  1  De  G. 
F.  &  J.  57S;  s.  c.  6  Jur.  x.  s.  518. 

*  Davidson  v.  Tiilloch,  3  Macq.  Ap.  Cas.  783;  s.  c.  G  Jur.  n.  s.  .")13. 

^  Clarke  c.  Dickson,  6  C.  B.  n.  s.  453;  s.  c.  5  Jur.  n.  s.  lOiO.  See  also 
Ex  parte  Nicol,  3  De  G.  F.  &  J.,  387;  s.  c.  5  Jur.  x.  s.  205. 

'  Athenaeum  Life  Insurance  Co.,  5  Jur.  N.  s.  216;  s.  c  Johns.  Ch.  Eng.  451. 
'  Burnes  v.  Pennell,  2  H.  L.  Cas.  497. 

[♦143] 


138  TRANSFER    OP    SHARES.  [PART    II. 

4.  In  this  case,"  Buriies  v.  Pcnncll,  Lords  Campbell  and 
Brougham  concurred  in  saying:  "Dividends  arc  supposed  to  be 
paid  out  of  profits  only,  and  where  directors  order  a  dividend  to 
be  paid,  when  no  such  profits  have  been  made,  without  expressly 
saying  so,  a  gross  fraud  is  practised,  and  the  directors  are  not  only 
civilly  liable  to  those  whom  they  have  deceived  and  injured,  but 
are  guilty  of  conspiracy,  for  which  they  are  liable  to  be  prosecuted 
and  punished." 

5.  Where  both  parties  labored  under  the  same  delusion  in  re- 
gard to  the  value  of  stock,  relief  could  not  be  granted,  of  course, 
on  the  ground  of  fraud  in  the  sale,  and  a  court  of  equity  will  not 
ordinarily  interfere  to  set  aside  a  sale  on  the  ground  of  mutual 
misapprehension  as  to  the  state  and  condition  of  the  subject-matter, 
unless  in  extreme  cases,  as  where  that  is  sold  as  valuable  which 
is  wholly  valueless,  or  does  not  exist.^  To  constitute  a  fraud  in 
such  cases,  it  is  requisite,  ordinarily,  that  the  parties  should  have 
been  upon  unequal  footing  in  regard  to  their  means  of  access  to 
the  knowledge  of  the  true  state  of  the  company's  funds  and  prop- 
erty, and  that  the  party  gaining  the  advantage  in  the  bargain, 
should,  in  some  way,  participate  in  giving  currency  to  the  false 
estimate  of  its  condition,  beyond  the  mere  fact  of  repeating  *  the 
report  of  the  directors,  where  both  parties  have  equal  means  of 
judging  of  its  correctness. 

6.  It  seems  to  be  regarded  as  settled  law,  that  in  case  of  such 
false  representations  to  raise  the  price  of  stocks,  and  damage 
thereby  sustained,  the  suffering  party  may  maintain  an  action  of 
tort  against  the  party  making  the  false  representation,  although 
it  were  not  made  directly  to  such  injured  party,  there  being  no 
necessity  for  any  privity  between  the  parties  to  support  an  action 
of  tort  for  a  false  representation.  But  where  the  action  is  ex 
contractu  or  quasi  ex  contractu,  some  privity  is  indispensable  to 
the  maintenance  of  the  action.'-* 

8  1  Story  Eq.  Jur.  §  142;  Hitchcock  v.  Giddiiigs,  4  Price,  135,  141;  2 
Kent  Com.  409. 

3  Gerhard  r.  Bates,  2  Ellis  &  B.  470;  s.  c.  20  Eng.  L.  &  Eq.  129.  In  this 
case  the  defendant  was  one  of  the  promoters  and  managing  directors  of  a 
joint-stock  company,  and  in  offering  the  shares  for  sale  guaranteed  a  certain 
semi-annual  dividend  to  purchasei's,  and  the  plaintiff  purchased  on  the  faith 
of  such  general  guaranty.  It  was  held  that  he  could  not  maintain  an  action 
on  the  guaranty,  but  might  recover  in  tort,  as  for  a  fraudulent  representation. 
Ir^fra,  %i  2:34,  240. 

[n44] 


§  41.]  PRACTICES   TO    IIAISE   THE    PRICE    OP   SHARES.  130 

7.  It  has  recently  been  decided  that  a  bona  fide  sale  and  trans- 
fer of  property  of  one  company  to  another,  in  consideration  of 
shares  in  the  one  company  being  transferred  to  the  other,  is  not 
such  a  return  of  ca})ital  as  would  be  in  contravention  of  the  En<r- 
lisli  statute,  Avhich  is  in  confirmation  of  the  general  rule  of  law, 
jjiohiliiting  the  conversion  by  corporations  of  capital  into  income, 
and  thus  virtually  reducing  the  stock  of  the  company  below  the 
roquircmcnts  of  the  charter;  and  on  the  other  hand  giving  the 
shares  of  the  company  a  false  value  in  the  market  by  reason  of 
fictitious  dividends. ^"^ 

*  8.  But  the  bona  fide  purchaser  of  shares  fraudulently  issued 
acquires  the  same  right  as  other  shareholders,  unless  he  buys 
after  the  company  is  in  the  process  of  lif^uidation  ;  and  even  in 
that  case  he  may  come  in  for  his  equal  proportion  of  the  assets, 
by  proving  that  he  bought  of  one  who  was  a  bona  fide  holder  be- 
fore the  company  was  subjected  to  the  process  of  being  wound 
uj).^i  (a)  But  it  was  held  that  a  bona  fide  sale  of  shares  in  a  com- 
j)any,  entered  into  after  the  presentation  of  the  petition,  but  before 
the  first  advertisement  for  winding  up  the  company,  both  vendor 
and  purchaser  being  ignorant  that  such  a  petition  was  pending,  was 
held  sullicient  to  have  passed  the  title.    But  the  rule  was  reversed. '"-^ 

10  Cardiff  C.  &  C.  Co.  11  W.  R.  1007.  See  also  McDougall  v.  Jersey  Im- 
perial Hotel  Co.,  2  Hemm.  &  M.  528;  s.  c.  10  Jur.  n.  s.  1043.  This  poiut  as 
to  the  taking  of  shares  by  one  company  in  another  is  discussed  in  the  case  of 
(ireat  Western  Railway  Co.  v.  Metropolitan  Co.,  9  Jur.  n.  s.  5U2.  There  can 
be  no  doubt  that  in  general  this  will  not  be  allowed,  unless  by  the  express  sanc- 
tion of  legislative  permission.  And  it  was  here  considered,  that  such  an 
express  sanction  will  not  be  construed  to  extend  to  additional  shares,  issued 
by  the  same  company,  and  expressly  required  to  be  allotted  to  the  existing 
sjiareholders.  Vice  Chancellor  Wood,  when  the  case  was  before  him,  cited  the 
case  of  Solomons  v.  Lang,  12  Beav.  377,  as  establishing  the  right  of  the  de- 
fendant in  the  suit  to  raise  the  question  of  the  plaintiff's  right  to  take  those 
additional  shares,  beyond  the  amount  which  the  special  legislative  permission 
authorized.  The  case  of  the  Attorney-General  i'.  (ireat  Northern  Railway 
Co.,  1  Drewry  &  S.  154 ;  s.  c  6  Jul',  n.  s.  lOOG,  is  also  cited  by  tlie  learned 
judge  as  analogous  to  the  case  then  before  him. 

"  Barnard  o.  Ragshaw,  1  Ilemm.  &  M.  GO. 

1-  Enimerson's  Case,  Law  Rep.  2  Eq.  231 ;  s.  c.  reversed  on  appeal,  Law 
Kep.  1  Ch.  Ap.  433. 

('()  And  so  a  /;(>?}«  /iWe  purchaser  of     have  been  paid  up.  is  entitled  to  rely 
shares,  the  certificates  for  which  de-     on  the  truth  of  the  representation, 
clare   on    their  face    that   the   shares 

[•145] 


140 


TRANSFER    OF   SHARES. 


[part  II. 


SECTION  XI. 


Liahilltij  of  Company  for  not  registering  Transfers. 


1.  Company  is  liable  to  an  action. 

2.  Whetiier  mandamus  will  lie  to  compel 

record. 

3.  Company  not  bound  to  record  mort- 

gages of  shares. 

4.  Grounds  of  denying  mandamus. 


5.  Bill  in  equity  most  appropriate 
remedy. 

C.  Rule  of  damages. 

7.  Fraudulent  cancellation  of  an  un- 
registered transfer  will  not  affect; 
the  title. 


§  42.  1.  It  seems  to  be  settled  in  England,  that  an  action  willj 
lie  against  a  joint-stock  company,  who  neglect  or  refuse,  upoi 
proper  request,  to  register  shares  and  deliver  new  certificates,  aftei 
the  deed  of  transfer  has  been  sent  to  the  secretary,  (a)    Damages! 
may  be  recovered,  it  seems,  by  reason  of  such  refusal  of  the  com- 
pany, whereby  the  party  is  deprived  of  the  right  to  attend  and! 
vote  at  the  meetings  of  the  company,  and  especially  where  callsj 
are  made  upon  the  shares,  and  in  consequence  of  non-payment 
the  shares  are  declared  forfeited  and  sold.^ 

1  Hodges  Railw.  123;  Catchpole  v.  Ambergate  Railway  Co.,  1  Ellis  &  B.j 
111;  IG  Eng.  L.  &  Eq.  163.  See  also  Wilkinson  v.  Anglo-California  Gold* 
Co.,  18  Q.  B.  728;  s.  c.  12  Eng.  L.  &  Eq.  444.  In  regard  to  the  right  to  sus- 
tain a  writ  of  mandamus  in  England,  to  compel  such  transfer  on  the  books  of 
the  company,  see  Rex  v.  Worcester  Canal  Co.,  1  M.  &  R.  529;  Regina  v.  Liver- 
pool, Manchester,  &  Newcastle-upon-Tyne  Railway  Co.,  11  Eng.  L.  &  Eq. 
408;  Sargent  v.  Franklin  Insurance  Co.,  8  Pick.  90.  So  also  an  action  on 
the  case  will  lie  for  not  transferring  stock.  The  rule  of  damages,  where 
the  stock  has  been  sold  as  the  property  of  the  vendor,  is  the  value  of  the 
shares  at  the  time  of  the  refusal;  Sargent  v.  Franklin  Insurance  Co.,  or,  as  it 
has  sometimes  been  held,  the  highest  value  between  the  time  of  refusal  and 
the  commencement  of  the  action.  Kartright  v.  Buffalo  Commercial  Bank,  20 
Wend.  91;  s.  c.  22  Wend.  348.  And  some  cases  extend  it  even  to  the  time 
of  trial.     But  see  supra,  §§  30,  38. 

Where  stock  in  a  railway  is  purchased  out  of  the  earnings  of  a  married 
woman  and  registered  in  her  name,  she  and  her  husband  may  sue  jointly 


(a)  TJie  company  is  liable  to  the 
assignor  in  an  action  founded  on  con- 
tract. His  claim  is  a  legal  claim  for 
damages.  But  where  the  remedy  at 
law  would  be  inadequate,  as  where 
the  assignor  would  remain  liable  to 
creditors  or  other  shareholders,  a  bill 

[*145] 


will  lie  for  specific  performance.  See 
Freon  v.  Carriage  Co.,  42  Ohio  St. 
30;  Shepherd  v.  Gillespie,  Law  Rep. 
5  Eq.  293  ;  Paine  v.  Hutchinson,  Law 
Rep.  3  Ch.  388.  The  assignee,  it 
seems,  may  also  maintain  an  action. 
See  supra,  §22,  note  (d). 


§  42.]  LIABILITY    OF    COMPANY    FOR    NOT    IIEOISTERTNG.  141 

*  2.  There  can  be  no  question  probably  in  this  country,  that 
where  the  company  refuse  on  reasonable  request  to  make  the 
])roper  entry  uj)on  their  books  of  the  transfer  of  shares  whereby 
the  owner  is  liable  to  be  deprived  of  any  loiral  ritrht  or  pecuniary 
advantage,  the  company  may  be  compelled  to  do  their  duty  in  the 
))remises,  by  writ  of  mandamus.  (Jj) 

3.  IJut  it  has  been  held,  that  the  comj)any  are  not  bound  to 
ro<?ister  trust-deeds  or  mortgajrcs,  and  es})ecially  such  as  contain 
other  property,  or  the  stock  of  other  companies.  The  mandamus 
was  refused  in  such  a  case,  in  the  Queen's  Bcncli,  so  late  as  May, 
185G,  and  upon  the  ground,  as  stated  by  Lord  Cami'bf>ll,  C.  J., 
that,  "  if  the  company  were  bound  to  register  this  deed,  they 
must  become  custodians  of  it,  and  must  incur  great  responsibility 
as  to  its  safe  custody,  and  that  therefore  convenience  requires  that 
they  should  only  be  bound  to  register  mere  transfers,  passing  the 
legal  title,  and  showing  who  is  the  legal  owner  of  the  shares."  ^ 

4.  But  a  mandamus  to  compel  the  registry  of  the  transfer  of 
shares  in  a  railway  company  to  an  infant,^  was  denied.     And  the 

for  dividends,  and  if  she  sue  alone,  it  is  only  ground  of  abatement.  Dalton 
V.  Midland  Railway  Co.,  13  C.  B.  474;  s.  c.  20  Eng.  L.  &  Eq.  273. 

Stock  cannot  be  transferred  so  as  to  pass  the  title  after  the  dissolution  of 
the  corporation,  the  shareholders  being  then  entitled  only  to  a  share  in  the 
assets.     James  v.  Woodruff,  2  Denio,  574. 

Where  a  company  has  registered  a  transfer,  which  is  alleged  to  be  a  for- 
gery, and  is  threatened  with  a  suit  from  both  the  transferor  and  transferee, 
the  court  will  not  grant  an  interpleader.  Dalton  r.  Midland  Railway  Co.,  12 
C.  B.  458;  s.  c  13  C.  B.  474;  22  Eng.  L.  &  Eq.  452. 

^  Rogina  v.  General  Cemetery  Co.,  G  Ellis  &  B.  415;  s.  c.  3G  Eng.  L.  & 
Eq.  120. 

2  Regina  v.  Mid.  Counties  &  Sh.  Junction  Railway  Co.,  15  Ir.  Com.  Law, 
514,  .525;  8.  c.  9  Law  T.  Rep.  n.  s.  151.  But  the  practice  of  compelling  the 
registry  of  transfers,  by  mandamus,  seems  well  established,  even  where,  they 

{li)  This  seems  doubtful.  In  gen-  accordingly,  the  weight  of  authority 
eral,  the  writ  of  mandamus  should  is  against  its  employment  in  this 
not  issue  where  there  is  no  public  case.  See  Stackpole  r.  Seymour, 
interest  involved,  nor  where  there  is  supra;  Lamphere  v.  United  Work- 
other  ample  remedy.  Stackpole  v.  men,  supra;  Freon  r.  Carriage  Co., 
Seymour,  127  Mass.  104;  Lamphere  42  Ohio  St.  30;  Baker  v.  Marshall, 
V.  United  Workmen,  47  Mich.  429.  15  Minn.  177;  Durham  r.  Monumental 
Besides,  it  is  a  legal  remedy,  and  Silver  Mining  Co.,  (»  Oreg.  41;  State 
should  not  be  granted  to  one  who  v.  Guerrero,  12  Xev.  105. 
stands   upon   a   mere    equity.      And 

[n46] 


142  TRANSFER   OF   SHARES.  [PART   II. 

*  court  of  equity  declined  to  interfere  to  compel  the  registry  of 
the  transfer  of  shares  when  the  company  are  denied  the  opportu- 
nity of  inspecting  the  certificates  by  their  directors.* 

5.  The  more  effectual,  and  at  present  the  more  usual,  remedy 
against  corporations  for  refusing  to  allow  the  transfer  of  stock 
upon  their  books  into  the  name  of  the  real  owner  is  by  bill  in 
equity.  And  in  one  case,^  where  the  party  whose  stock  had  been 
allowed  by  the  bank  to  be  transferred  into  the  names  of  those 
who  had  purchased  it  under  forged  powers  of  attorney  sought 
redress  by  an  action  at  law,  the  court  said,  "  We  cannot  do  justice 
to  this  plaintiff  unless  we  hold  that  the  stocks  are  still  his,"  and 
therefore  denied  the  action  for  the  value  of  the  stocks,  but  al- 
lowed a  recovery  for  the  dividends  which  had  been  declared  after 
the  transfer. 

6.  And  there  is  the  same  difficulty  in  compensating  the  pur- 
chaser of  stocks,  where  a  transfer  on  the  books  has  been  denied 
in  an  action  at  law.  In  some  cases  this  has  been  attempted  to  be 
done  by  allowing  the  party  to  recover  the  highest  market  price 
of  the  stock  between  the  refusal  to  transfer  and  the  trial.  But 
the  only  rule  at  all  analogous  to  settled  principles  seems  to  be 
that  the  corporation  shall  pay  the  value  of  the  stock  at  the  date 

are  not  of  a  character  to  induce  the  most  favorable  consideration,  e.  g.,  a 
transfer  to  a  pauper  to  enable  the  transferor  to  get  rid  of  liability,  it  being 
intended  to  be  out  and  out,  with  no  secet  trust  for  the  transferor.  lb.  In 
general,  one  who  understandingly  consents  to  have  shares  transferred  into  his 
name  upon  the  public  registry  of  shares,  must  be  content  to  assume  all  the 
responsibility  towards  the  public  and  the  other  shareholders  not  conusant  of 
the  special  contract,  which  any  other  shareholder  would  incur.  But  as  be- 
tween the  company  and  the  purcliaser  there  may  be  special  grounds  of  relief. 
Ex  parte  Coleman,  1  De  G.  J.  &  S.  495;  Ex  parte  Grady,  id.  488;  Ex  parte 
Barrett,  10  Jur.  n.  s.  711;  Ex  parte  Saunders,  id.  240;  s.  c.  4  Gif.  179. 

Any  transaction  of  this  kind  will  not  be  disturbed,  after  considerable  lapse 
of  time.  Ex  parte  Spackman,  1  De  G.  J.  &  S.  504;  s.  c.  10  Jur.  n.  s.  911; 
Ex  parte  Lane,  id.  25;  Ex  parte  Spackman,  11  Jur.  n.  s.  207.  In  Houlds- 
worth  V.  Evans,  Law  Rep.  3  H.  L.  263,  it  is  distinctly  declared,  as  the 
settled  doctrine  of  the  English  courts,  that  any  arrangement  betw'een  the  com- 
pany and  the  shareholders,  although  irregularly  entered  into  as  between  the 
directors  and  the  shareholders,  will  nevertheless  bind  the  body  of  the  share- 
holders, unless  they  take  active  steps  to  have  it  set  aside  within  some  short 
and  reasonable  time  after  it  becomes  known  to  them  Infra,  §  135,  pi.  C,  and 
note. 

*  In  re  East  Wheal  Martha  Mining  Co.,  33  Beav.  119. 

6  Davis  V.  Bank  of  England,   2  Bing.  303;  infra,  §241. 
[*147J 


§  43.] 


\vhi:n  calls  becomk  perfected. 


143 


of  their  refusal  to  transfer  it,  as  that  is  the  time  wlicn  the  corpo- 
ration became  in  default,  and  when  by  said  default  the  stock,  as 
between  the  parties,  became  theirs.^  The  question  of  the  eU'ect 
of  forged  and  fraudulent  transfers  is  very  ably  discussed  bv  the 
Court  of  Chancery  Appeal  in  Tayler  v.  Great  Indian  Peninsula 
Railway." 

7.  In  a  somewhat  recent  case,^  one  A.  authorized  a  stock-broker 
to  purchase  for  him  some  shares  in  a  company,  and  paid  tlie 
jiurchasc-money,  and  the  shares  were  duly  transferred  to  him,  by 
written  instrument,  but  his  name  was  not  registered.  Afterwards 
the  stock-broker,  on  a  false  pretence,  prevailed  on  A.  to  cancel 
liis  signature  to  the  instrument  of  transfer,  and  to  sign  a  deed  of 
transfer  to  him,  the  broker ;  A.  believing,  on  the  representation 
of  the  broker,  that  he  was  executing  a  fresh  transfer  to  himself 
in  the  place  of  that  which  had  been  cancelled.  The  broker  trans- 
ferred them  to  an  innocent  holder  as  security  for  £5,000,  money 
lent  a  short  time  before.  Held,  on  a  bill  filed  by  A.,  that  the 
original  transfer  to  him  must  have  its  effect;  and  that  the  shares 
were  thereby  vested  in  him,  and  still  remained,  notwithstanding 
the  cancellation  and  subsequent  transactions. 


♦SECTION  XII. 


When  Calls  become  Perfected. 


Calls  arc  made  when  tlie  sum  is. as- 
sessed;  notice  may  be  given  after- 
wards. 


2,  3.   Directors   tlie  proper   autliority   to 

make  calls. 
4.  Manner  of  giving  notice  and  of  proof. 


§43.  1.  The  English  statute  of  1845,  called  the  Companies' 
Clauses  Consolidation  Act,  requires  all  calls  to  be  paid  before  any 
valid  transfer  can  be  made.  Under  this  statute,  and  similar  ])ro- 
visions  in  special  charters,  it  has  often  been  made  a  question, 
when  a  call  may  be  said  to  be  made.     It  seems  to  be  considered 


"  Pinkerton  r.  Manchester  &  LaMrence  Railway  Co.,  1  Am.  Law  Re^ 
96;  s.  c.  42  N.  II.  424. 

'  .5  Jur.  N.  s.  1087;  s.  c.  4  Do  G.  &  J.  .5o0.     See  infra,  §§  40,  211.     And  s 
Building  Association  r.  Sendemeyer,  50  Penn.  St.  67. 

*  Donaldson  v.  Gillot,  12  Jur.  x.  s.  959;  s.  c.  Law  Rep.  3  Eq.  274 


id  see 


[*148] 


144  TEANSFER   OP   SHARES.  [PART   II. 

that  the  word  "call"  in  this  connection  may  refer  to  the  resolution 
of  tlie  directors,  by  which  a  certain  sum  is  required  to  be  paid  to 
the  company,  by  the  shareholders,^  or  secondly  to  the  notice  to 
the  shareholders  of  the  assessment,  and  the  time  and  place  at 
which  they  will  be  required  to  make  payment,  and  the  amount  to 
be  paid.  But  it  seems  finally  to  be  settled,  that  the  company  are 
not  obliged  to  regard  any  transfer,  made  after  the  resolution  of 
the  directors  making  the  assessment,  which  need  not  specify  the 
time  of  payment,  but  that  may  be  determined  by  a  subsequent  act 
of  the  board.2  (a) 

^  Ex  parte  Tooke,  6  Railw.  Cas,  1 ;  North  American  Colonial  Association 
V.  Bentley,  19  Law  J.  Q.  B.  427;  15  Jur.  187. 

A  resolution  of  the  board  of  directors  requiring  the  stockholders  to  pay  an 
instalment  of  ten  per  cent  every  thirty  days,  on  all  cash  subscriptions,  until 
the  whole  is  paid,  and  that  due  notice  thereof  be  given,  is  admissible  evidence 
of  calls  for  the  whole  subscription.  It  was  here  considered  that  the  words 
"month,"  and  "  thirty  days,"  used  in  different  portions  of  the  act,  must  be 
considered  of  the  same  import.  Heaston  v.  Cincinnati  &  Fort  Wayne  Rail- 
road Co.,  16  Ind.  275;  Sands  v.  Sanders,  26  N.  Y.  239. 

2  Great  North  of  England  Railway  Co.  v.  Biddulph,  2  Railw.  Cas.  401; 
s.  c.  7  M.  &  W.  243;  Newry  &  Enniskillen  Railway  Co.  v.  Edmunds,  5 
Railw.  Cas.  275;  s.  c.  2  Exch.  118,  122;  Pauke,  B.,  in  Ambergate,  Notting- 
ham &  Boston  &  Eastern  Junction  Railway  Co.  v.  Mitchell,  6  Railw.  Cas.  235; 
s.  c.  4  Exch.  540;  Regina?;.  Londonderry  &Coleraine  Railway  Co.,  13  Q.  B.  998. 

Unless  there  is  something  in  the  subscription  or  the  charter  and  by-laws  of 
the  company  requiring  notice  of  calls,  or  making  the  subscription  payable  on 
calls,  it  is  said  in  Lake  Ontario,  &c.  Railroad  Co.  v.  Mason,  16  N.  Y.  451, 
that  it  is  not  indispensable  that  notice  of  calls  should  be  given  the  subscribers 
before  suit.  But  this  seems  contrary  to  the  general  course  of  decision  on  that 
point,  and  at  variance  with  the  idea  of  a  call,  or  assessment;  and  such  seems  to 
be  the  general  understanding  of  the  rule  in  the  American  courts.  But  these 
questions  will  depend  very  much  on  the  special  provisions  of  the  statutes  in 
the  different  states,  by  which  the  matter  is  controlled,  and  somewhat  on  the 
special  terms  of  the  contract  of  subscription.  Heaston  v.  Cincinnati  &  Fort 
"Wayne  Railroad  Co.,  16  Ind.  275.  Thus,  in  the  present  case  it  was  held  that 
the  general  railway  law  of  Indiana  required  notice  and  a  personal  demand  be- 
fore proceeding  to  forfeit  the  stock,  but  not  before  suit  to  recover  instalments; 
and  that  as  to  calls  the  statute  required  the  subscribers  to  take  notice  of  the 
action  of  the  directors.  And  it  was  further  said,  that  where  the  articles  of 
association  or  the  preliminary  articles  of  subscription,  or  both  combined,  con- 

(a)  Calls  are  not  always  necessary,     periods.      "Waukon    Railroad   Co.   v. 
e.  g.,  when  the  charter  provides  that     Dwyer,  49  Iowa,  121. 
shares    shall    be  payable   at    certain 
[*148] 


I 


§  43.]  WHEN    CALLS    BECOME    PERFECTED.  145 

*  2.  It  seems  the  diiectoi-s,  and  not  the  company,  arc  the 
proper  parties  to  make  calls  under  the  En<_4ish  statutes,  (i) 

3.  This  seems  to  have  been  decided  uj)un  the  general  ground 
of  the  authority  of  the  directors.^ 

4.  The  (question  of  what  shall  amount  to  a  good  call,  and  how 
the  same  may  be  shown  in  court,  is  considerably  examined  in  Miles 
V.  Bough.*  (c)  It  is  here  decided,  that  no  person  coidd  ])e  sued 
for  non-payment  of  a  call  till  he  had  received  due  notice  thereof, 
although  the  statute  did  not  require  notice  in  express  terms ;  that 
an  order  to  pay  the  money  at  a  given  broker's  was  a  good  call ; 
that  in  the  declaration  it  Avas  suflicient  to  allege  that  the  calls 
were  made  and  the  defendant  duly  notified,  without  further  speci- 
fication of  particulars  ;  and  that  the  jury  may  infer  sufficient  no- 
tice from  the  fact  of  an  express  promise  to  pay,  notwithstanding 
it  appeared  that  a  defective  notice  had  been  sent,  unless  it 
appeared  that  was  the  only  notice  given,  when  the  case  must 
be  decided  upon  the  sufficiency  of  the  notice  in  fact  given. 

tain  an  undertaking  to  pay  the  amount  subscribed  on  certain  conditions,  an 
action  will  lie  to  enforce  the  stipulations  upon  proof  of  the  subscription  and 
the  performance  of  the  conditions. 

8  Ambergate,  Nottingham  &  Boston  &  Eastern  Junction  Railway  Co.  v. 
Mitchell,  4  Exch.  540,  pei-  Pollock,  C.  B.,  who  said,  "  The  next  objection  is, 
that  the  directors  made  these  calls;  but  they  were  competent  to  do  so,  as  they 
may  do  all  things,  except  such  as  are  to  be  done  by  the  shareholders  at  a  gen- 
eral meeting;  and  there  is  nothing  in  the  act  which  makes  it  necessary  that 
the  company  should  make  calls  at  a  general  meeting;  "  and  Baron  Pakke 
spoke  to  the  same  effect. 

^  3  Q.  B.  845.  Defective  notice  by  publication  is  not  aided  by  personal 
notice  of  a  shorter  time.     Sands  r.  Sanders,  2G  X.  Y.  239. 

{h)  In  general,  this  depends  on  the  be   delegated.     Silver  Hook  Road   r. 

provisions  of  the  charter.     Whomso-  Greene,  siipra. 

ever  the  charter  designates  is  agent  in  (r)  Where    the   charter  does    not 

this  behalf ;    if  the  board  of  directors,  provide   otherwise,    it   is    in    general 

neither  the  jiresident  nor  a  minority  unnecessary  to  give  notice.    See  Eppes 

of  the  board  can  make  a  call.     Silver  v.  Mississippi  Railroad    Co.,  3.3    Ala. 

Ilook  Road  v.  Greene,  12  R.  I.  101;  33;  Eakright  r.  Logansport  Railroad 

Mutual  Fire  Insurance  Co.  v.  Lowell,  Co.,    13    Ind.    404;    Wilson    v.    Wils 

59  'Me.    501.      Nor   can    the    power  Valley  Railroad  Co.,  33  Ga.  4 Ott. 
VOL  I. -10  [*149] 


146  TRANSFER   OF   SHARES.  [PART   II. 

*SECTION  XIII. 
Transfer  by  Death,  Insolvency,  or  Marriage. 


I 


1.   Mandamus  lies  to  compel  the  registry' 
of  successor. 

3.  In  case  of  death,  personal  representa- 

tive liable  for  calls. 

4.  Notice  requisite  to  perfect  the  title  of 

mortgagee. 


5.  Stock  in  trust  goes  to  new  trustees. 

6.  Assignees  of  insolvents  not  liable  for 

the  debts  of  the  company. 

7.  Effect  of  marriage  oifeme  sole. 


§  44.  1.  The  title  to  shares  in  a  railway  is  liable  to  transfer  by 
the  death,  bankruptcy,  or  insolvency  of  the  proprietor,  or  by  mar- 
riage of  the  female  owner  of  such  shares.  In  such  case  the  Eng- 
lish statute  requires  a  declaration  of  the  change  of  ownership  to 
be  filed  with  the  secretary  of  the  company,  and  the  name  of  the 
new  owner  is  thereupon  required  to  be  entered  upon  the  register 
of  shareholders.  A  mandamus  will  lie  to  compel  the  clerk  to 
make  the  proper  entry  in  such  case.^ 

2.  These  incidents  are  so  much  controlled  by  local  laws,  in 
different  jurisdictions,  that  it  would  scarcely  comport  with  our 
object  to  state  more  than  the  general  principles  affecting  them. 
In  most  of  the  United  States  all  property  (especially  personal 
estate  as  railway  shares),  in  the  first  instance,  upon  the  decease 
of  the  proprietor,  vests  in  his  personal  representative,  in  trust, 
first  for  the  payment  of  debts,  and  afterwards  for  legatees,  or  in 
default  of  them,  the  heirs  of  such  proprietor. 

3.  And  so  far  as  regards  voting  upon  such  shares,  the  title 
of  the  executor  or  administrator  will  ordinarily  be  sufficient. 
Before  the  name  of  the  executor  or  administrator  is  entered  upon 
the  books  of  the  company,  as  a  shareholder,  the  estate  only  could 
be  held  liable  for  calls  probably,  and  perhaps  the  same  rule  of 
liability  would  obtain  after  that.^     But  in  general  where  shares 

1  Rex  V.  AVorcester  Canal  Co.,  1  :\I.  &  R.  529. 

2  Fyler  v.  Fyler,  2  Raihv.  Cas.  873;  s.  c.  3  Beav.  550;  Jacques  v.  Cham- 
bers, 2  Coll.  C.  C.  435;  s.  c.  4  Railw.  Cas.  499.  But  the  administrator  or 
other  personal  representative  of  a  deceased  shareholder  may,  under  the  recent 
English  statute,  maintain  an  action  against  the  company  for  refusal  to  regis- 
ter his  name  as  successor  to  the  title,  and  after  recovery  of  damages  he  is 
entitled  to  a  mandamus  to  compel  the  company  to  register  his  name.  He  is 
also  entitled  to  the  prerogative  writ  of  mandamus  in  such  ca?es  at  common 
law.     Xorris  v.  Irish  Land  Co.,  8  Ellis  &  B.  512;  s.  c.  30  Law  T.  132. 

[*150] 


§  44.]   TRANSFER  BY  DEATH,  INSOLVENCY,  OR  MARRIAGE.     147 

in  a  joint-stock  *  company  arc  bcqiieatlied  specifically,  the  legatee 
takes  tlieni  subject  to  all  future  ealls.^  But  where  the  payment 
of  future  calls  is  indispensable  to  bring  the  shares  into  the  state 
in  -which  the  testator  regarded  them  in  his  will,  such  calls  should 
be  paid  by  the  estate.* 

4.  In  case  of  death  or  insolvency,  the  title  of  a  mortgagee  first 
notified  to  the  company  will  commonly  have  priority.^  Notice  to 
the  comi)any  is  necessary  to  perfect  the  title  of  a  mortgagee,  in 
case  of  bankruptcy  or  insolvency.'' 

5.  As  to  the  title  of  the  bankrupt,  all  shares  standing  upon  the 
register  of  the  company  in  his  name  will  be  regarded  as  under 
his  control,  order,  and  disposition,  and  w'ill,  under  the  English 
statutes,  go  to  the  assignees.^  But  stock  in  any  incorporated 
company  standing  in  the  name  of  the  bankrupt  as  trustee,  is  to 
be  transferred  by  the  assignee  to  the  name  of  new  trustees,  and 
a  court  of  chancery  w^ill  so  order.'' 

G.  The  assignees  of  an  insolvent  estate,  a  portion  of  whose 
assets  consists  of  shares  in  a  manufacturing  corporation,  are  not 
liable  under  special  statutes  making  shareholders  liable  for  the 
debts  of  the  corporation.  That  is  a  provision  of  positive  law,  and 
is  to  be  construed  strictly.^ 

7.  The  marriage  of  a  feme  sole,  being  the  owner  of  shares,  will 
have  the  effect  to  transfer  them  into  the  control  of  the  husband, 
the  same  as  any  other  personal  estate,  unless  where  it  is  provided 
otherwise  by  statute,  or  the  husband  chooses  to  leave  them  still 
under  the  control  of  the  wil'c.^*' 

8  Blount  V.  Ilipkins,  7  Sim.  43,  51;  Jacques  r.  Chambers,  2  Coll.  4:^)5; 
Clive  r.  Clive,  Kay,  GOO;  Wriglit  r.  Warren,  4  De  G.  &  S.  3G7;  Adams  v. 
Ferick,  26  Beav.  384. 

*  Armstrong  r.  Burnet,  20  Beav.  384. 

6  Cummhig  v.  Prescott,  2  Y.  &  Col.  C.  C.  4S8. 

"  But  where  all  parties  are  partners,  notice  will  sometimes  be  implieil. 
^.r /*o)7pWaitman,  2  Mont.  &  A.  ;)n4;  Duncan  v.  Chamberlayne,  11  Sim.  121; 
Etty  V.  Bridges,  2  Y.  &  Col.  Eq.  4SG. 

7  Shelf.  Railw.  118-121. 

«  Ex  parte  Walker,  19  Law  J.  Bank.  3. 
»  Gray  v.  Coffin,  9  Cush.  192. 

^"  Schouler  Dom.  Rel.  Ill  elseq.y  and  cases  cited;  Richardson  v.  Merrill, 
32  Vt.  27,  and  cases  cited. 

[♦151] 


148 


TRANSFER   OF   SHARES. 


[part  II. 


SECTION  XIV. 


Legatees  of  Shares. 


1.  Entitled  to  election,  interest,  and  new 

shares,  but  not  to  bonds. 

2.  Shares  owned  at  date  of  will  pass,  al- 


though converted  into  consolidated 
stock. 
3.  Consolidated  stock  subsequently  ac- 
quired will  not  pass. 


§  45.  1.  Legatees  of  railway  shares  have  the  election  out  of 
which  class  of  shares  their  legacy  shall  be  paid,  when  there  is 
more  *  than  one  class  of  the  same  description  found  in  the  will. 
And  they  are  entitled  to  the  income  of  the  shares,  after  the  death 
of  the  testator,  and  to  receive  any  advantage,  by  way  of  new 
shares  resulting  from  the  ownership  of  the  shares. ^  But  a 
specific  legatee  of  shares  is  not  entitled  to  a  bonus  on  such 
shares,  declared  after  the  decease  of  the  testator,  but  arising  out 
of  moneys  due  the  company  from  the  testator,  and  which  claim 
was  compromised  by  his  executors,  but  such  bonus  belongs  to 
the  general  fund  of  personal  estate.^  And  such  legatee  must 
bear  the  calls  which  are  made  after  the  testator's  death,  unless 
there  is  something  in  the  will  to  show  a  different  intent.^ 

2.  A  bequest  of  the  testator's  railway  shares,  of  which  he 
should  be  possessed  at  his  decease,  was  held  to  pass  such  rail- 
way shares  specifically  named  in  the  will  as  the  testator  had  at 
the  date  of  his  will,  although  subsequently  converted  into  con- 
solidated stock  of  the  same  company,  by  a  resolution  of  the 
company. 

3.  But  that  other  consolidated  stock  of  the  same  company 
owned  by  testator  at  his  decease,  did  not  pass  under  the  will,  the 
same  having  been  purchased  after  the  execution  of  his  will.^ 

^  Jacques  v.  Chambers,  2  Col.  C.  C.  4.35;  s.  c.  4  Railw.  Cas.  205;  Tanner 
V.  Tanner,  5  Railw.  Cas.  184;  s.  c.  11  Beav.  69.  And  it  is  held  in  this  last 
case  that  on  a  bequest  of  railway  shares  and  all  right,  title,  and  interest 
therein,  money  paid  beyond  the  calls  will  pass  to  the  legatee. 

2  Maclaren  v.  Stainton,  27  Beav.  4G0;  s.  c.  6  Jur.  n.  s.  360;  Loch  v. 
Venables,  27  Beav.  598;  s.  c.  6  Jur.  n.  s.  238. 

8  Day  V.  Day,  1  Drewry  &  S.  261;  s.  c.  6  Jur.  N.  s.  365. 

*  Oakes  v.  Oakes,  9  Hare,  666. 
[*152] 


§46.] 


SHARES   IN   TRUST. 


149 


SECTION   XV. 
Shares  in  Trust. 


1,  2.  Company  may  safely  deal  with  reg- 
istered owner. 

3.  But  equity  will  protect  the  rights  of 
cestuis  que  trust. 


i.   Discussion  of  the  rights  of  cestuis  que 
trust  in  stock  certificates. 


§46.  1.  By  the  English  statute,  railway  companies  are  not 
hound  to  sec  to  the  execution  of  trusts  in  the  disbursement  of 
their  dividends,  but  are  at  liberty  to  treat  the  person  in  wliose 
*  name  tlie  shares  are  registered  as  the  absolute  owner.  It  would 
seem  that  in  the  case  of  the  bankruptcy  of  a  shareholder  in  a 
joint-stock  company,  a  court  of  equity  will  sometimes  protect 
trust  funds,  although  registered  in  the  name  of  the  bankrupt, 
both  from  the  claim  of  the  assignee  and  the  company,  Avho  have 
made  advances  to  the  nominal  owner,  upon  the  faith  of  his  being 
the  true  owner,  but  without  any  pledge  of  the  stock. ^ 

2.  In  general,  in  this  country,  it  is  believed  railway  companies 
will  be  protected  in  dealing  bona  fide  with  the  person  in  whose 
name  shares  are  registered  on  the  books  of  the  company,  as  the 
absolute  owner,  notwithstanding  any  knowledge  they  may  have  of 
the  equitable  interest  of  third  parties,  (a) 

^  Pinkett  i;.  Wright,  2  Hare,  120.  The  opinion  in  tliis  case  is  a  very 
elaborate  opinion,  by  Vice-Chancellor  Wigram,  on  the  subject  of  protecting 
the  interest  of  cestuis  que  trust  in  the  stock  standing  in  the  name  of  a  trustee 
who  has  become  bankrupt.  The  trustee  in  this  case  was  also  the  proprietor 
of  shares  in  his  own  right,  all  standing  in  his  name,  without  anything  on 
the  books  of  the  company  to  distiiiguis-h  which  were  trust  funds.  It  was  held 
that  the  trustee  must  be  presumed  to  have  pledged  such  stock  as  belonged  to 
himself,  and  not  that  of  his  cestuis  que  trust,  and  that  shares  which  stood  in 
tlie  name  of  the  trustee  at  the  time  of  the  bankruptcy,  and  thenceforward  re- 
mained in  his  name,  might  fairly  be  presumed  to  be  identical  with  those  in 
which  the  trust  funds  were  invested,  the  number  of  shares  being  the  same. 
Notice  to  the  company  is  indispensable  to  create  an  equitable  mortgage  of 
railway  shares.  Ex  parte  Boulton  v.  Skelehley,  29  Law  T.  71;  s.  c  1  De  G. 
&  J.  173. 


(n)  The  company,  however,  should 
not  pay  to  the  holder  of  the  legal  title 
after  notice  of  an  equity.  And  the 
courts  will  protect  the  rights  of  equi- 


table assignees.  See  Parrot t  r.  Byer.«<, 
40  Cal.  614.  Pennsylvania  Railroad 
Co.'s  Appeal,  SG  Penn.  St.  81. 

[•153] 


150 


TRANSFER    OF    SHARES. 


[part  II. 


3.  But  there  can  be  no  question,  a  court  of  equity  will  always 
protect  the  interest  of  a  cestui  que  trust,  when  it  can  be  done 
without  the  violation  of  prior  or  superior  equities,  which  have 
bona  fide  attached. 

4.  It  was  recently  held  after  careful  examination  of  the  author- 
ities,^  that  the  holder  of  stock,  as  trustee,  has  ^;rj;??a  facie  no 
right  to  pledge  it  as  security  for  his  private  debt,  and  one  who 
accepts  the  pledge  under  such  circumstances,  acquires  no  rights 
against  the  cestui  que  trust.  And  the  word  "  trustee  "  in  the  cer- 
tificate, in  connection  with  the  name  of  the  holder,  is  notice  to  all 
persons  to  whom  the  certificate  may  be  delivered,  sufficient  to  put 
the  party  on  inquiry  as  to  the  nature  of  the  holder's  title,  and  the 
character  and  extent  of  the  trust. 


^SECTION  XVI. 

Tfie  extent  of   Transfer  requisite   to  exempt  from  claim   of 

Creditors. 


1.  How  transfer  of  stock  perfected  as  to 

creditors. 

2.  Reasonable    time  allowed  to  record 

transfer. 


3,  4.   In  some  of  the  states  no  record  re- 
quired, 
n.  3.    Question  furtlier  considered. 


§  46  a.  1.  The  question  of  what  constitutes  a  valid  transfer  of 
shares  in  a  joint-stock  corporation,  so  as  to  exempt  them  from 

2  Shaw  V.  Spencer,  8  Am.  Law  Reg.  n.  s.  290;  s.  c.  100  Mass.  382. 
The  decision  here  falls  short,  probably,  of  what  the  authorities  would  support 
if  the  case  required  it.  But  the  usages  of  the  Stock  P^xchange,  whereby  trus- 
tees are  enabled  to  defraud  their  cestuis  que  trust  for  the  benefit  of  speculators, 
receives  a  moderate  but  very  just  rebuke;  the  court  saying  that  certificates  of 
stock  in  blank  are  not  to  be  regarded  as  negotiable  instruments,  cutting  off  all 
equities  of  bona  fie  parties  in  interest  (s.  p.  Sewall  v.  Boston  Water  Power, 
4  Allen,  272);  and  that  no  usage  or  custom  of  brokers,  or  cour.se  of  busi- 
ness can  avail  to  defeat  or  qualify  the  established  rules  of  law,  recognized 
in  courts  of  equity.  The  following  significant  intimation  of  the  court  is 
worthy  of  notice:  "The  circumstance  that  stock  certificates,  issued  in  the 
name  of  one  as  trustee  and  by  him  transferred  in  blank,  are  constantly  bought 
and  sold  in  the  market  without  inquiry,  is  likewise  unavailing.  A  uaage  to 
disrerjard  one^s  legal  duty,  to  he  if/norant  nf  a  rule  of  law,  and  to  act  as  if  it  did 
not  exist,  can  have  no  standing  in  the  courts." 

[*154] 


§  40  a.]  TRANSFER    KXE.Ml'T    FROM    CREDITORS.  151 

attaclnnciit  and  levy  by  creditors  of  the  transferor,  is  consider- 
ably discussed  in  a  case  in  New  Hampshire  by  a  jud^^e  of  larj^e 
experience,  and  the  result  reached,  that  upon  a  pledge  of  stock  in 
a  railway  corporation  in  New  Hampshire,  there  should  be  such 
delivery  as  the  nature  of  the  thing  is  capable  of,  and  to  be  good 
against  a  subsequent  attaching  creditor  the  pledgee  must  be 
clothed  with  all  the  usual  muniments  and  indicia  oi  ownership; 
that  by  the  laws  of  New  Hampshire,  a  record  of  the  ownership  of 
shares  must  be  kept,  by  domestic  corporations,  within  the  state, 
and  by  oflicers  resident  there ;  and  that  on  the  transfer  of  stock 
the  delivery  will  not  be  complete,  as  to  creditors,  until  an  entry 
is  made  upon  such  stock-record,  or  it  be  sent  to  the  office  for  that 
purpose,  and  the  omission  thus  to  perfect  the  delivery  will  be 
prima  facie,  and  if  unexplained  *  conclusive  evidence  of  a  secret 
trust,  and  therefore,  as  matter  of  law,  fraudulent  and  void  as  to 
creditors.^ 

2.  But  in  the  case  last  cited  it  is  said  that  when^  the  transfer 
is  made  at  a  distance  from  the  office  and  the  old  certificate  sur- 
rendered and  a  new  one  given  by  a  transfer  agent  residing  in  a 
neighboring  state,  proof  that  the  proper  evidence  of  such  transfer 
was  sent  by  the  earliest  mail  to  the  keeper  of  the  stock  record  to 
be  duly  entered,  although  not  received  until  an  attachment  liad 
intervened,  would  be  a  sufficient  explanation  of  the  want  of 
delivery,  and  the  transfer  would  be  good  against  the  creditor. 
Any  unreasonable  delay  in  perfecting  the  record  title  to  such 
shares  leaves  them  liable  to  the  claims  of  creditors. 

3.  But  where  the  charter  of  the  company  or  the  general  laws 
of  the  state  contain  any  specific  restriction  or  requirement  in 
regard  to  the  transfer  of  shares,  it  must  be  complied  with  or  the 
title  will  not  pass.^  (a) 

^  Pinkerton  v.  Manchester  &  Lawrence  Railroad  Co.,  1  Am.  Law  Reg. 
N.  s.  9(3 ;  s.  c.  42  X.  IL  424. 

-  Fi.slier  v.  Essex  Bank,  5  Gray,  373;  Sabin  v.  Woodstock  Bank.  21  Vt. 
362;  Pittsburgh  &  Connellsville  Railroad  Co.  v.  Clarke,  29  Peun.  St.  140. 

(a)  Whether,  where  it  is  required  orously  discussed  in  Morawetz  Priv. 
that  all  transfers  be  executed  on  the  Corp  §  190  c/  scq,  and  the  rule  stated 
books  of  the  corporation,  an  assign-  in  the  text  is  impugned  on  principle, 
ment  by  delivery  of  the  certificate  will  See  Central  National  Bank  r.  Willis- 
be  good  against  an  attaching  creditor,  ton,  136  Mass.  244;  Newell  r.  Willis- 
seems  not  settled.     The  matter  is  vig-  ton,    138  Mass.   240;    Application   of 

[*155J 


152  TRANSFER   OF   SHARES.  [PART   II. 

4.  In  a  case  in  New  Jersey,^  it  seems  to  be  considered  that 
nothing  more  is  required  to  make  an  effectual  transfer  of  stock 
in  a  bank,  even  as  against  creditors,  than  an  assignment  of  the 
certificates  and  a  delivery  to  the  assignee,  and  that  this  will 
be  regarded  as  effectual  against  an  attaching  creditor  without 
notice,  even  where  the  charter  of  the  company  declares  the  stock 
personal  estate,  and  provides  that  "  it  shall  be  transferable  upon 
the  books  of  the  corporation,"  and  also,  "  that  books  of  transfer 
of  stock  shall  be  kept,  and  shall  be  evidence  of  the  ownership  of 
said  stock  in  all  elections  and  other  matters  submitted  to  the 
decision  of  the  stockholders." 

2  Broadway  Bank  r.  IMcElrath,  2  Beasley,  24.  It  is  proper  to  say  that 
there  is  considerable  difference  in  the  decisions  of  the  different  states  as  to 
the  point  of  time  from  which  the  transfer  of  equitable  titles  is  to  be  reckoned, 
as  between  purchasers  for  value  and  creditors.  It  is  generally  considered 
that  the  transfer  takes  effect  from  the  date  of  notice  to  the  trustee,  who  holds 
the  legal  title  subject  to  all  equities,  which  attach  ordinarily  only  on  notice 
brought  home  to  him.  Some  of  the  states  regard  the  equitable  rights  of  the 
purchaser  as  dating  from  the  period  of  the  actual  purchase,  provided  notice  to 
the  trustee  be  given  within  reasonable  time  after.  The  question  and  the  cases 
have  been  somewhat  discussed  in  Rice  v.  Courtis,  32  Vt.  4G0;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  111.    And  see  1  Story  Eq.  Jur.  §  400  b. 

Murphy,   51    Wis.    519;    Skowhegan  Beasley,  24;  Pinkerton  v.  Manchester 

Bank  v.  Cutler,  49  Me.  315;  Sibley  v.  Railroad  Co.,  42  N.  H.  424;  Cheever 

Quinsigamond    National    Bank,    133  v.  Meyer,  52  X.  II.  GG;   Scripture  v. 

Mass.  515;  Scott  v.  Pequonnock  Na-  Francestown  Soapstone  Co.,  50  N.  H. 

tional  Bank,  15  Fed.  Rep.  494.     And  571. 
see  Broadway   Bauk  v.  McElrath,   2 
[*lo5] 


§47.] 


PARTY   LIABLE   FOR   CALLS. 


153 


♦CHAPTER    IX. 

ASSESSMENTS    OR   CALLS. 


SECTION  I. 


Party  liable  for  Calls. 


1.  Party  whose  name  appears  on  the  reg- 

ister liable  for  calls. 

2.  Bankrupts  remain  liable  for  calls. 

3.  Cestuis  que  trust  not  liable  for  calls  in 

law  or  equity. 


4.  Trustee  compelled  to  pay  for  shares. 

5.  Party  whose  name  is  registered  may 

show  that  it  is  improperly  there. 


§  47.  1.  It  socms  to  be  settled  law  that  the  registered  owner  of 
railway  shares  is  liable  for  all  calls  thereon,  so  long  as  his  name 
remains  upon  the  register.^  The  effect  of  the  transfer  of  railway 
scrip  is  only  to  convey  an  equitable  interest  in  the  shares,  with  the 
right  to  have  the  shares  formally  assigned  to  him,  and  his  name 
entered  upon  the  register  as  a  shareholder.^  («) 

*  Midland  Great  Western  Railway  Co.  v.  Gordon,  .5  Raihv.  Cas.  7G;  s.  c. 
IG  M.  &  W.  804;  Mangles  v.  Grand  Collier  Dock  Co.,  10  Sim.  519;  s.  c. 
2  Railw.  Cas.  359;  Sayles  v.  Blane,  U  Q.  B.  205;  s.  c.  G  Raihv.  Cas.  79; 
West  Cornwall  Railway  Co.  v.  Mowatt,  15  Q.  B.  521.  In  this  case  it  was  said 
that  even  if  tlie  transaction  by  which  the  title  to  the  stock  and  the  registry  of 
defendant's  name  were  made  were  illegal,  it  could  not  avail  him  in  an  action 
for  calls.  See  h\fra,  §  23G;  Long  Island  Railroad  Co.,  19  Wend.  37;  Mann  v. 
Currie,  2  Barb.  294;  Hartford  &  New  Haven  Railroad  Co.  v.  Boorman,  12 
Conn.  530;  Maun  v.  Cooke,  20  Conn.  178;  Rosevelt  v.  Brown,  11  N.  Y.  148. 
The  registry  of  shareholders,  though  irregularly  kept,  is  prima  facie  evidence 
of  the  liability  to  calls,  of  those  whose  names  appear  upon  it.  Birmingham 
Railway  Co.  v.  Locke,  1  Q.  B.  250;  London  (Jrand  Junction  Railway  Co.  v. 
Freeman,  2  M.  &  G.  600;  Same  v.  Graham,  1  Q.  B.  271;  Aylesbury  Railroad 
r.  Thomson,  2  Railw.  Cas.  6G8.  This  last  case  holds  that  the  purchaser  of 
sliares  is  only  liable  for  calls  made  after  his  name  is  on  the  register.  The  com- 
pany may,  by  its  charter,  and  probably  by  a  by-law,  provide  that  the  original 
subscriber  .«;hall  be  holden  for  all  calls,  or  until  a  certain  amount  is  paid  in. 
Vicksburg,  Shreveport,  &  Texas  Railroad  Co.  v.  McKeen,  14  La.  An.  724. 


(a)  Miller  v.  Great  Republic  In- 
surance Co.,  50  Mo.  55;  Gilbert's  Case, 
Law  Rep.  5  Ch.  Ap.  559;  Harrison's 


Ca.se,  Law  Rep.  G  Ch.  Ap.  28G;  Mur- 
ray V.  Bush,  Law  Rop.  0  II.  L.  37. 

[*15G] 


154  ASSESSMENTS   OR   CALLS.  [PART   H. 

2.  In  case  of  bankruptcy,  the  bankrupt  remains  liable  for  all 
calls  unless  the  names  of  the  assignees  are  registered  on  the  books 
of  the  company,  as  this  is  not  regarded  as  a  debt  payable  in  future, 
and  which  may  be  proved  under  the  commission .^ 

*  3.  The  trustee  of  shares,  Avhose  name  appears  upon  the  books 
of  the  company,  is  alone  liable  for  calls,  and  the  company  have  no 
remedy  in  equity  even  for  calls  against  the  cestui  que  trust?  But  if 
a  shareholder  when  the  company  is  in  extremis  makes  a  colorable 
transfer  to  an  irresponsible  person,  it  has  been  held  it  will  not 
relieve  him  from  liability  to  contribute.*  But  in  the  absence  of 
fraud  or  mala  fides,  the  cestui  que  trust  cannot  be  subjected  to  a  call 
although  he  may  be  compelled  to  indemnify  his  trustee."  And  it 
seems  finally  to  be  settled  in  the  English  Court  of  Chancery,  that 
a  shareholder  may  transfer  his  shares  in  an  abortive  company, 
where  such  shares  pass  by  delivery,  to  an  insolvent  person,  for  the 
purpose  of  getting  rid  of  liability  to  contribute  to  its  responsibilities, 
provided  the  transaction  be  a  real  one,  and  not  a  false  or  hollow 
contrivance.*^  But  where  the  transaction  exhibits  no  motive  except 
escape  from  the  liability  of  the  company,  and  especially  where  it 
transpires  after  the  company  is  publicly  declared  insolvent,  it  was 

■■2  South  Staffordshire  Railway  Co.  v.  Burnside,  2  Eng.  L.  &  Eq.  418;  s.  c. 
5  Exch.  129 •,  6  liailw.  Cas.  Gu/ 

*  Newry,  &c.,  Railway  Co.  v.  Moss,  4  Eng.  L.  &Eq.  34;  s.  c.  14  Beav.  64. 
But  where,  in  winding  up  the  affairs  of  a  company,  the  name  of  a  mem- 
ber who  had  obtained  his  certificate  after  the  expenses  were  incurred,  was 
placed  among  the  contributories,  he  was  held  not  liable.  Chappie's  Case,  17 
Eng.  L.  &  Eq.  516;  s.  c.  5  De  G.  &  S.  400.  Where  shares  were  pledged  at  a 
bank  as  security  for  a  loan,  and  the  name  of  the  bank,  or  of  the  chairman 
and  manager  of  the  bank,  was  entered  on  the  register  of  shareholders  simply 
as  holders  of  the  shares,  which  had  been  represented  as  fully  paid  up  at  the 
time  of  pledge,  it  was  held  that  they  were  not  liable  for  calls.  Guest  v.  Worces- 
ter, Bromyard,  &  Leominster  Railway  Co.,  Law  Rep.  4  C.  P.  9. 

*  Ex  parte  Lund,  27  Beav.  4G5;  Ex  parte  Ilyatn,  6  Jur.  x.  s.  181;  s.  c. 
1  De  G.  F.  &  J.  75.  See  also  De  Pass's  Case,  4  De  G.  &  J.  544;  Ex  parte 
Chinnock,  1  Johns.  Ch.  Eng.  714;  infra,  §  242. 

*  Electric  Telegraph  Co.  v.  Bunn,  6  Jur.  n.  s.  1223. 

*  In  re  Mexican  &  South  American  Co.,  2  De  G.  F.  &  J.  302;  Ex  parte 
Slater,  12  Jur.  x.  s.  242.  All  that  seems  to  be  required  is  that  the  transfer 
be  absolute.  Bush's  Case,  Law  Rep.  6  Ch.  Ap.  246.  And  even  the  fact  that 
the  transferor  guaranteed  the  transferee  against  future  calls  will  not  defeat 
the  eifect  of  the  transfer.  Harrison's  Ca?e,  id.  286.  Even  the  most  sus- 
picious circumstances  will  not  defeat  the  transfer.  ^Master's  Case,  7  id. 
292. 

[n57] 


§  47.]  PARTY    LIAHLK    FOR   CALLS.  155 

Jield  it  will  be  regarded  as  merely  colorable  and  not  valid."  lUxi 
where  the  holder  of  shares  threatened  to  put  the  company  into  in- 
solvency unless  the  directors  would  find  some  one  to  purchase  his 
shares  and  give  him  an  indemnity,  which  was  done  twelve  months 
before  the  company  became  insolvent,  it  was  held  to  be  a  valid 
transfer.^     Trustees  under  a  will  are  properly  made  contributorics.'-' 

4.  The  trustee  into  whose  name  the  ccxfui  que  trust  had  caused 
shares  to  be  transferred  by  deed,  reciting  that  the  price  of  the  same 
had  been  paid  to  the  vendor,  who  executed  the  deed,  may  never- 
theless be  compelled  to  make  good  such  price  to  the  vendor,  if  it 
*  were  not  in  fact  paid,  although  lie  accepted  the  transfer  in  the 
belief  that  it  had  been  paid.^*^ 

5.  Notwithstanding  the  defendant's  name  appear  upon  the 
register  of  shares,  he  will  be  permitted,  in  a  suit  for  calls,  to 
show  that  it  was  illegally  placed  there,  and  without  his  authority. 
But  a  purchaser  of  shares,  or  even  an  original  subscriber,  cannot 
be  sued  for  calls,  under  the  English  statute,  until  his  name  is 
placed  on  the  registry. ^^  But  one's  name  appearing  upon  the 
books  of  the  company  as  a  shareholder  is  prima  facie  evidence  of 
the  fact,  in  an  action  against  such  person  to  enforce  against  him 
the  personal  responsibility  of  a  stockholder  for  the  debts  of  the 
company.^-  (a)  And  in  such  an  action  the  judgment  against  the 
corj)oration  is  jjrima  facie  evidence  of  its  indebtedness  as  against 
the  stockholder.^^ 

T  In  re  Electric  Telegraph  Co.,  30  Beav.  143. 
*  Phoenix  Life  Assurance  Co.,  7  Law  T.  n.  s.  267. 
^  Ex  parte  Drummond,  2  Gif.  189;  s.  c.  (J  Jur.  n.  s.  908. 
^"  Wilson  V.  Keatincf,  27  Beav.  121. 

"  Hodc^es  Kailw.  4th  ed.  101;  Newry  &  Enniskillen  Railway  Co.  i'.  Ed- 
munds, 2  Exch.  118. 
1-  Huagland  v.  Bell,  30  Barb.  57. 


(n)  Tinnbull  v.  Payson,  9.5  U.  S.  421,  and  cases  there  cited.     "Washer  v. 
Alleusville  Turnpike  Co.,  81  lud.  78. 

[*158] 


156 


ASSESSMENTS   Oil   CALLS. 


[part  n. 


SECTION    II. 


Colorable  Subscriptions. 


1.  Colorable  subscriptions  valid. 

2.  Directors  may  be  compelled  to  register 

them. 

3.  Oral  evidence  to  vary  the  written  sub- 

scription inadmissible. 


4.  Register  evidence  although  not  made 

in  the  time  prescribed. 

5.  Confidential  subscriptions  void. 

6.  Shares  cannot  be  issued  to  secure  debts 

of  company. 


§  48.  1.  Equity  will  not  restrain  a  railway  company  from  en- 
forcing calls,  by  action  at  law,  upon  the  ground  that  one  of  the 
conditions  of  the  charter,  requiring  a  certain  amount  of  subscrip- 
tions of  stock  before  the  incorporation  took  effect,  had  not  been 
complied  with,  but  that  a  fraud  upon  the  provision  had  been  prac- 
tised by  means  of  colorable  subscriptions.  The  Court  of  Chancery 
regards  colorable  subscriptions,  made  in  the  course  of  getting  a 
bill  through  the  House  of  Lords  (to  comply  with  one  of  the  stand- 
ing rules  of  that  house,  requiring  three-fourths  of  the  requisite  out- 
lay to  be  subscribed  before  the  bill  passes),  to  be  binding  upon  the 
directors  and  managers  who  make  the  same,  and  that  they  are  in 
fact  Talid  and  binding  subscriptions,  although  such  subscriptions 
were  made  with  the  purpose  of  being  subsequently  cancelled,  and 
*  had  never  been  registered  upon  the  books  of  the  company,  or 
any  calls  made  upon  them,  (a) 

2.  It  is  Avithin  the  proper  range  of  the  powers  of  a  court  of 
equity  to  compel  the  directors  to  register  such  shares,  and  enforce 
the  payment  of  calls  upon  them.^ 

1  Preston  v.  Grand  Collier  Dock  Co.,  11  Sim,  327;  s.  c.  2  Railw.  Cas. 
335;  Mangles  v.  Same,  10  Sim.  519.  The  principle  of  these  cases  is  very 
distinctly  recognized  in  the  case  of  Blodgett  v.  Morrill,  20  Vt.  509 ;  s.  c  1 
Redf.  Am.  Railw.  Cas.  138,  and  it  lies  at  the  foundation  of  all  fair  dealing,  that 
one  is  bound  by  representations  on  which  he  has  induced  others  to  act,  although 
at  the  time  he  did  not  intend  to  be  bound  by  them,  but  expected,  through 
favor,  to  be  relieved  from  their  performance.  See  also  Henry  v.  Vermillion 
Railroad  Co.,  17  Ohio,  187.  But  if  one  obtain  shares  in  a  distribution  by 
commissioners  by  fraud,  he  may  be  compelled,  in  equity,  to  surrender  them  to 


(a)  Muller  v.  Hanover  Junction 
Railroad  Co.,  87  Penn.  St.  99;  Melvin 
r.  Lamar  Insurance  Co.,  80  111.  446; 
Pickering  v.  Templeton,  2  Mo.  Ap. 

[*159] 


424.  And  see  Henderson  v,  Lacon, 
Law  Rep.  5  Eq.  249;  Occidental  In- 
surance Co.  V.  Ganzhorn,  2  Mo.  Ap. 
205. 


§  48.]  COLORABLE   SUBSCRIPTIONS.  I.'jT 

In  one  casc^  where  this  subject  came  under  discussion  in 
equity,  where  the  provisional  directors,  in  tlie  process  of  carryin;:^ 
a  l)ill  through  parliament,  proposed  to  the  contractor  tliat  lie 
should  have  the  contract  for  the  company's  works  i)rovided  he 
would  accept  payment  partly  in  shares,  tlie  number  to  be  settled 
by  the  company's  engineer  ;  but  contracted  for  liim  to  sign  for  a 
suHicient  number  of  shares  to  make  up  the  amount  required  by 
the  standing  orders  of  parliament,  which  was  G30  of  £10  each, 
which  he  accordingly  subscribed  and  the  bill  passed ;  *  but  when 
tlie  contract  was  closed  he  was  to  take  but  300  shares ;  the  scheme 
being  abandoned  before  the  works  were  commenced,  it  was  held 
that  the  arrangement  made  by  the  directors  with  the  contractor 
was  ultra  vires,  and  if  not  a  fraud  upon  the  orders  of  parliament 
it  was  void  as  against  such  subscribers  as  were  not  privy  to  it ; 
and  that  the  circumstance  of  the  contractor  having  subscribed 
the  deed  last  but  one,  and  the  last  subscriber  being  privy  to  the 
arrangement,  did  not  alter  the  rights  of  those  subscribers  who  were 
not  privy  to  it;  and  that  the  contractor  was  liable,  as  a  contributory, 
for  the  entire  number  of  shares  for  which  he  signed  the  deed. 

3.  Oral  evidence  is  inadmissible  to  vary  the  terms  of  a  sub- 
scription to  the  stock  of  a  railway  unless  it  tend  to  show  fraud  or 
mistake.^     But  where  the  subscriber  is  really  misled,  and  induced 

other  subscribers,  to  whom  they  would  have  been  awarded  but  for  such  fraud. 
Walker  i'.  Devereaux,  4  Paige,  22'J;  s.  c.  1  Iledf.  Am.  Kailw.  Cas.  29. 

A  subscription  for  shares  will  bind  the  subscriber,  altliough  tlie  company 
agree  in  writing  to  release  the  subscriber,  the  understanding  being  that  the 
subscription  is  to  be  held  out  to  the  public  as  bona  fide.  The  agreement  to 
release  is  a  fraud  upon  other  subscribers,  and  void.  White  Mountains  Railroad 
Co.  V.  Eastman,  .34  N.  H.  124 ;  Dowiiie  v.  White,  12  Wis.  17G.  See  also  Connec- 
ticut &  Passunipsic  Rivers  Railroad  Co.  v.  Bailey,  24  Vt.  4(j.3;  Mann  r.  Peiitz, 
2  Sandf.  Ch.  2.;7;  Penobscot  &  Kennebec  Raihoad  Co.  i'.  Dunn,  39  Maine,  GOl. 

2  North  Shields  Quay  Co.  v.  Davidson,  4  Kay  &  J.  GS8. 

«  Wight  V.  Shelby  Railroad  Co..  IG  B.  Monr.  5;  Blodgett  i-.  :Morrill.  20 
Vt.  509:  s.  c.  1  Redf.  Am.  Railw.  Cases,  ISS;  Kennebec  &  Portland  Railroad 
Co.  V.  Waters,  34  I\Ie.  309.  But  mere  mistake,  or  misapprehension  of  the 
facts,  by  the  subscriber,  is  no  ground  of  relief  unless  it  amounts  to  fraud 
and  imposition,  brought  about  by  some  agent  of  the  company.  Hence  where 
one  subscribed  for  shares  under  the  mistaken  belief  that  he  might  forfeit  his 
stock  at  will,  and  be  no  further  liable,  he  was  held  liable,  though  this  belief 
was  the  result  of  assurances  then  made  by  the  person  taking  the  subscription, 
that  such  were  the  terms  of  subscription  secured  by  the  charter,  such  assurances 
being  founded  in  mistake,  and  not  wilfully  false.     Northeastern  Railroad  Com- 

[*1G0] 


158  ASSESSMENTS   OR   CALLS.  [PAET   II. 

to  subscribe  for  stock,  upon  the  representation  of  a  state  of  facts 
in  regard  to  the  time  of  comjtleting  the  road,  or  its  location,  made 
by  those  who  take  up  the  subscription,  and  in  good  faith  and  upon 
proper  inquiry  and  the  exercise  of  reasonable  discretion  believed 
by  the  subscriber,  and  which  constitutes  the  prevailing  motive 
and  consideration  for  the  subscription,  and  which  proves  false,  it 
would  seem  that  the  contract  of  subscription  should  be  held  void, 
both  in  law  and  equity.* 

4.  When  the  statute  requires  the  registry  of  shares  to  be  made 
*  within  a  limited  time,  such  requirement  is  regarded  as  merely 
directory,  and  the  registry,  although  not  made  within  the  pre- 
scribed time,  will  still  be  competent  evidence,  and  to  the  same 
extent  as  if  made  within  the  time  required.^ 

5.  Subscriptions  made  under  an  agreement  that  they  are  not  to 
be  binding  unless  a  specilied  sum  is  subscribed,  are  not  valid  to 
bind  other  subscribers,  as  it  is  essential  that  there  should  be  no 
conditions  as  to  the  liability  of  any  of  the  subscribers  not  applica- 
ble to  all.  (^)  Confidential  subscriptions  in  such  case  made  for 
the  purpose  of  making  up  the  required  sum  are  a  fraud  upon  the 
other  subscribers ;  and  should  not  be  treated  as  valid  subscrip- 
tions. Where  by  deducting  such  confidential  subscriptions  the 
required  sum  is  not  subscribed,  the  contract  of   subscription  does 

pany  v.  Rodrigues,  10  Rich.  S.  C.  27S;  Xorth  Carolina  Railway  Co.  v.  Leach, 
4  Jones,  N.  C.  340.  It  is  here  said  that  one  of  the  commissioners,  in  taking 
subscriptions,  has  no  right  to  give  any  assurances  as  to  the  line  of  location 
which  will  be  adopted.  And  if  the  location  be  different  from  that  provided 
in  the  charter  of  the  company,  the  party  may  lose  the  right  to  object  to  paying 
his  subscriptions  on  that  ground,  unless  he  resort  to  mandamus  or  injunction, 
at  the  earliest  convenient  time.  Ex  parte  Booker,  18  Ark.  338;  Brownlee  v. 
Ohio,  Indiana,  &  Illinois  Railroad  Co.,  18  Ind.  08. 

*  Henderson  v.  Railway  Co.,  17  Tex.  5G0. 

^  Wolverhampton  New  Waterworks  Co.  v.  Hawksford,  7  C.  B.  n.  s.  79-5; 
6  Jur.  N.  s.  G32.  Affirmed  in  Exchequer  Chamber,  10  W.  R.  153;  11  C.  B. 
N.  s.  456  ;  8  Jur.  n.  s.  844. 

(i)  A  subscription   upon  a  condi-  v.  Brush,  43  Conn.  86.     An  offer  to 

tion  precedent  is  a  mere  offer,  of  no  subscribe  on  condition  of  location  of 

binding  force  until  the  condition  has  the  road  on  a  certain  line  is  revocable 

been  performed  and  the  subscription  till  accepted,  and  death  of  the  offerer 

has  been  accepted.     Central  Turnpike  is  a  revocation.    Wallace  r.  Townsend, 

Co.  V.  Valentine,  10  Pick.  142.     And  43  Ohio  St.  537.     And  see    Sedalia, 

see  Ticonic  Water  Power  Co.  v.  Lang,  Warsaw,  &  Southern  Railroad  Co.  v. 

63  Me.  480;  Ridgefield  Railroad  Co.  Wilkerson,  83  Mo.  235. 
[*161] 


§  40.] 


MODE   OF   ENFORCING    PAYMENT. 


159 


not  become  operative,  so  as  to  bind  the  subscribers.  Parol  evi- 
dence is  admissible  to  show  that  certain  of  the  subscriptions  were 
confidential  in  character,  and  therefore  fraudidcnt.^ 

G.  Where  the  corporation  was  indebted  for  borrowed  monev,  and 
issued  stock  to  a  third  person  in  trust  for  the  security  of  the  debt, 
on  condition  to  be  retransfcrred  to  the  company  upon  payment 
of  the  debt,  it  was  held  the  shares  were  illegally  issued." 


SECTION  III. 


Mode  of  enforcing  Payment. 


1.  Subscription  to  indefinite  stock  raises 

no  implied  proinise  to  pay  tiie 
nmount  assessed. 

2.  If  sli.ires  are  definite,  subscription  im- 

plies a  promise  to  pay  assessments. 
Kiglit  of  forfeiture  a  cumulative 
remedy. 

3.  Whether  issuing  new  stock  will  bar  a 

suit  a},'ainst  subscriber,  quccre. 

4.  It  would  seem  not. 

5.  But  the  requirements  of  the  charter 

anil  general  laws  of  the  state,  must 


be  strictly  pursued  In  declaring  for- 
feiture of  stock. 

Notice  of  sale  must  name  place. 

Validity  of  calls  not  affected  by 
misconduct  of  directors  in  other 
matters. 

Proceedings  must  be  regular  at  date. 

Acquiescence  often  estops  the  party. 

Forfeiture  of  .shares. 

Irregular  calls  must  be  declared  void, 
before  others  can  be  made  to 
supply  the  place. 


§  49.  1.  The  company  may  resort  to  all  the  modes  of  enforcing 
payment  of  calls  which  are  given  them  by  their  charter,  or  the 
general  laws  of  the  state,  unless  these  remedies  are  given  in  the 
alternative.  But  the  principal  conflict  in  the  ca.ses  seems  to  arise 
upon  the  point  of  maintaining  a  distinct  action  at  law  for  the 
amount  assessed.  Many  of  the  early  turnpike  and  manufacturing 
companies  *  in  tliis  coimtry,  did  not  create  any  definite,  or  dis- 
tinct capital  stock,  to  consist  of  shares  of  a  definite  amount,  in 
currency,  but  only  constituted  the  subscribers  a  body  corporate, 
leaving  them  to  raise  their  capital  stock  in  any  mode  which  their 
by-laws  should  prescribe.  And  in  some  such  cases,  the  charter, 
or  general  laws  of  the  state,  gave  the  company  power  to  assess  the 
subscribers  according  to  the  number  of  shares  held  by  each.  But 
the  amount  of   the    shares  was   not  limited.     The    assessments 

«  New  York  Exchange  Co.  v.  De  Wolf,  31  N.  Y,  273.    But  see  supra,  note  1. 
">  Brewster  v.  Hartley,  37  Cal.  15;  supra,  §  20,  pi.  11. 

[*162] 


160  ASSESSMENTS   OR    CALLS.  [PART   IL 

might  be  extended  indefinitely,  according  to  the  necessities  of  the 
company.  In  such  cases,  where  the  only  remedy  given  by  the 
deed  of  subscription,  the  charter  and  by-laws,  or  the  general  laws 
of  the  state,  was  a  forfeiture  of  the  shares,  the  courts  generally 
held,  that  the  subscriber  was  not  liable  to  an  action  in  j>&rsonam 
for  the  amount  of  calls.^  And  this  seems  to  us  altogether  rea- 
sonable and  just.  *For  if  a  subscription  to  an  indefinite  stock 
created  a  personal  obligation  to  pay  all  assessments  made  by  the 
company  upon  such  stock,  it  would  be  equivalent  to  a  personal 

1  Franklin  Glass  Co.  v.  White,  14  Mass.  286;  Andover  Turnpike  Co.r. 
Gould,  6  Mass.  40;  Same  t'.  Hay,  7  Mass.  102;  New  Bedford  Turnpike  Co.  v. 
Adams,  8  Mass.  138;  Bangor  House  Proprietary  v.  Hinckley,  3  P\airf.  385, 
388;  Franklin  Glass  Co.  v.  Alexander,  2  N.  H.  380.  But  where  there  was 
an  express  promise  to  pay  assessments,  or  facts  from  which  such  an  under- 
taking was  inferable,  it  was  always  held,  even  in  this  class  of  cases,  that 
an  action  will  lie.  Taunton  &  South  Boston  Turnpike  Co.  v.  Whiting,  10 
Mass.  327;  Bangor  Bridge  Co.  v.  McMahon,  1  Fairf.  478.  But  a  subscriber 
to  the  stock  of  a  turnpike  company,  who  promised  to  pay  assessments,  when 
afterwards  the  course  of  the  road  was  altered  by  law,  was  held  thereby  ex- 
onerated. Middlesex  Turnpike  Co.  v.  Swan,  10  Mass.  884.  These  proposi- 
tions have  never  been  questioned.  Worcester  Turnpike  v.  Willard,  5  Mass. 
80.  To  the  same  effect  are  Chester  Glass  Co.  v.  Dewey,  IC  Mass.  94;  New- 
buryport  Bridge  Co.  v.  Story,  6  Pick.  45;  Salem  Mill-Dam  Co.  v.  Ropes,  6 
Pick.  23;  Ripley  v.  Sampson,  10  Pick.  371;  Cutler  v.  ^Liddlesex  Factory  Co., 
14  Pick.  483.  This  general  question  of  the  responsibility  assumed  by  those 
who  consent  to  become  shareholders  in  a  corporation,  where  the  shares  are 
not  fully  paid  up,  is  discussed  by  Allen,  J.,  in  Seymour  v.  Sturgess,  26  N.  Y. 
134,  where,  the  facts  being  peculiar,  it  was  held  that  the  shareholder  incurred 
no  obligation  to  pay  the  balance  due  on  the  shares  if  he  elected  to  abandon 
them.  But  there  is  no  implication  of  duty  to  pay  the  amount  of  a  subscrip- 
tion where  the  terms  of  subscription  declare  payment  to  be  made  in  such 
instalments  as  shall  be  required  by  the  board  of  directors,  unless  the  declara- 
tion and  proof  show  that  an  instalment  had  been  required  by  the  directors. 
Gebhart  v.  Junction  Railroad  Co.,  12  Ind.  484;  McClasky  v.  Grand  Rapids  & 
Indiana  Railroad  Co.,  16  Ind.  96.  Where  by  the  charter  of  an  eleemosynary 
corporation  subscriptions  were  allowed  to  be  taken,  and  the  subscriber,  by  se- 
curing the  amount  and  paying  the  interest  promptly,  was  entitled  to  save  the 
payment  of  the  principal,  it  was  held  this  was  matter  of  indulgence  to  the 
subscriber,  to  which  he  could  only  entitle  himself  by  proving  his  compliance 
with  the  conditions  on  which  the  indulgence  was  granted.  Denny  v.  North- 
western Christian  University,  16  Ind.  220.  The  undertaking  of  subscribers  to 
a  joint-stock  will  be  held  several  and  not  joint,  without  express  words.  Price 
V.  Grand  Rapids  &  Indiana  Railroad  Co.,  18  Ind.  137.  The  law  by  which  a 
corporation  exists  and  acts  forms  part  of  the  contract  of  subscription.  Hoag- 
land  V.  Cincinnati  &  Fort  Wayne  Railroad  Co.,  18  Ind.  452. 
[*163] 


§  -It).]  MODE   OP   ENFORCING   PAYMENT.  1<U 

liability  of  the  stockholders  for  the  debts  nnd  liabilities  of  tin-  t-om- 
pany;  as  wc  shall  see,  hereafter,  that  ihe  directors  of  a  corporation 
may  be  compelled,  by  writ  of  mandamus,  to  make  calls  upon  the 
stock,  for  the  purpose  of  payini^  the  debts  of  the  company.''^ 

2.  I>ut  where  the  stock  of  the  company  is  defined  in  its  char- 
ter, and  is  divided  into  shares  of  a  definite  amount  in  money,  a  sub- 
scription for  shares  is  justly  regarded  as  equivalent  to  a  promise 
to  pay  calls,  as  they  shall  be  legally  made,  to  the  amount  of  the 
shares.  This  may  now  be  regarded  as  settled,  both  in  this  coun- 
try and  in  England,  and  that  the  power  given  the  company  to 
forfeit  and  sell  the  shares,  in  cases  where  the  shareholders  fail  to 
pay  calls,  is  not  an  exclusive  but  a  cumulative  remedy,  unless  the 
charter  or  general  laws  of  the  state  provide  that  no  other  remedy 
shall  be  resorted  to  by  the  company .^  (a) 

2  Infra,  §  50. 

'  Hartford  &  Xew  Haven  Railroad  Co.  v.  Kennedy,  12  Conn.  499.  In  this 
case  it  was  held,  that,  from  the  relation  of  stockholder  and  company  thus 
created,  a  promise  was  implied  to  pay  instalments;  that  the  clause  authorizing 
a  sale  of  the  stock  was  merely  cumulative;  and  that,  whether  the  company 
resorted  to  it  or  not,  the  personal  remedy  against  the  stockholder  remained 
the  same.  The  same  points  are  confirmed  by  the  same  court,  in  Mann  i*. 
Cooke,  20  Conn.  ITS.  And  in  Danbury  Railroad  Co.  v.  Wilson,  22  Conn. 
435,  the  defendant  was  held  liable  for  calls  on  a  subscription  to  the  stock  of  a 
company  whose  charter  had  expired,  and  been  revived  by  the  active  agency  of 
defendant.  See  also  Dayton  v.  Borst,  31  N.  Y.  435;  Piscataqua  Ferry  Co.  v. 
Jones,  39  N.  H.  401. 

Nearly  all  the  cases  hold,  that  where  the  sub.'^cription  is  of  such  a  character 
as  to  give  a  personal  remedy  against  the  subscriber,  in  the  absence  of  other 
specific  redress,  the  mere  fact  that  the  company  has  the  power  to  forfeit  the 
shares  for  non-payment  of  calls,  will  not  defeat  the  right  to  enforce  the  pay- 
ment of  calls  by  action.  Goshen  Turnpike  Co.  c.  Hurtin,  9  Johns.  217; 
Dutchess  Cotton  Manufacturing  Co.  v.  Davis,  14  Johns.  238;  Troy  Turnjiike 
Co.  r.  McChesney,  21  Wend  29(5;  Northern  Railroad  Co.  r.  Miller,  10  Haib. 
260;  Plank-lload  Co.  ;;.  Payne,  17  Parb.  507.  In  this  last  case  it  was  held  to 
be  matter  of  intention  and  construction,  whether  the  remedies  were  concurrciit 
and  cumulative,  or  in  the  alternative.  And  in  Troy  &  Boston  Railroad  Co. 
I'.  Tibbits,  18  Barb.  297,  it  is  said  to  be  well  settled,  that  the  obligation  of 
actual  payment  is  created  by  a  subscription  to  a  capital  stock,  unless  plainly 
excluded  by  the  terms  of  the  subscription,  and  that  the  forfeiture  is  a  cumu- 
lative remedy.     Ogdensburg,  Rome,  &  Clayton  Railroad  Co.  r.  Frost,  21  Barb. 

(a)  Boston,  Bane,  &  Gardner  Rail-     Co.,  31  Md.   317;  Milton  v.  Clayton, 
road  Co.  v.  Wellington,  113  Mass.  79;     54  Iowa,  425. 
Hughes   V.  Antietam   Manufacturing 

VOL.  I.- 11.  [*163J 


162  ASSESSMENTS   OR    CALLS.  [PART   II. 

*  3.  The  question  in  the  English  cases  seems  to  be  whether,  after 
the  forfeiture  of  the  shares,  and  a  confirmation  of  the  same  *  by 

541.  See  also  Herkimer  Manufacturing  &  Hydraulic  Co.  v.  Small,  21  Wend. 
273;  s.  c.  2  Hill,  127;  Sagory  v.  Dubois,  3  Sandf.  Ch.  4GG;  ISIann  v.  Currie, 
2  Barb.  294;  Mann  v.  Pentz,  2  Sandf.  Ch.  257;  Ward  v.  Griswoldville  Manu- 
facturing Co.,  16  Conn.  593;  Lexington  &  West  Cambridge  Railroad  Co.  v. 
Cliandler,  13  Met.  311;  Klein  v.  Alton  &  Sangamon  Railroad  Co.,  13  111.  514; 
Ryder  v.  Same,  13  111.  516;  Gayle  v.  Cahawba  Railroad  Co.,  8  Ala.  586;  Beene 
V.  Cahawba  &  Marion  Railroad  Co.,  3  Ala.  660;  Spear  v.  Crawford,  14  Wend. 
20;  Palmer  v.  Lawrence,  3  Sandf.  161,  where  Dueh,  J.,  says  the  law  must  now 
be  considered  as  settled,  "  that  the  obligation  of  actual  payment  is  created  in 
all  cases,  by  a  subscription  to  a  capital  stock,  unless  the  terms  of  subscription 
are  such  as  plainly  to  exclude  it."  Elysville  v.  O'Kisco,  5  Miller,  152;  Green- 
ville &  Columbia  Railroad  v.  Smith,  6  Rich.  91;  Charlotte  &  South  Carolina 
Railroad  Co.  v.  Blakely,  3  Strob.  245;  Banet  v.  Alton  &  Sangamon  Railroad 
Co.,  13  111.  504,  514;  Hightower  r.  Thornton,  8  Ga.  486;  Freeman  v.  Win- 
chester, 10  Sm.  &  M.  Ch.  577;  Tar  River  Navigation  Co.  v.  Neal,  3  Hawks, 
520;  Gratz  v.  Redd,  4  B.  Monr.  178;  Selma  &  Tennessee  Railroad  v.  Tipton, 

5  Ala.  787;  Troy  &  Rutland  Railroad  Co.  v.  Kerr,  17  Barb.  581.  Where  the 
statute  gave  an  election  to  the  company  either  to  forfeit  the  shares  for  non- 
payment of  calls,  or  to  sue  and  collect  the  amount  of  the  shareholder,  it  was 
held  that  no  notice  of  such  election  was  necessary  to  be  given  before  suit 
brought.  Xew  Albany  &  Salem  Railroad  Co.  v.  Pickens,  5  Ind.  247.  The  terms 
of  the  charter  must  be  pursued  where  they  provide  specifically  for  the  redress 
for  non-payment  of  calls ;  as  if  the  shareholder  is  made  liable  only  for  deficiency 
after  forfeiture  and  sale  of  the  stock.  Grays  v.  Turnpike  Co.,  4  Rand.  578; 
Essex  Bridge  Co.  i'.  Tuttle,  2  Vt.  393.  But  some  of  the  American  cases  seem 
to  hold,  that  a  corporation  has  no  power  to  enforce  the  payment  of  calls,  against 
a  subscriber  for  stock,  unless  upon  an  express  promise,  or  under  some  express 
statutory  power,  and  that  a  subscription  for  the  stock  is  not  equivalent  to  an 
express  promise  to  pay  calls  thereon  to  the  amount  of  the  shares.       Kennebec 

6  Portland  Railroad  Co.  v.  Kendall,  31  Me.  470.  But  cases  of  this  class  are 
not  numerous,  and  are,  we  think,  unsound.  See  al.so  Allen  v.  Montgomery 
Railroad  Co.,  11  Ala.  437.  It  has  been  held,  that  after  the  forfeiture  is  de- 
clared, the  company  cannot  longer  hold  the-  subscriber  liable.  Small  v. 
Herkimer  ^Manufacturing  &  Hydraulic  Co.,  2  Comst.  330.  So  if  the  com- 
pany omit  to  exercise  its  power  of  forfeiture,  as  the  successive  defaults  occur, 
until  all  the  calls  are  made,  it  thereby  loses  its  remedy  by  sale.  Stokes  v. 
Lebanon  &  Sparta  Turnpike  Co.,  6  Humph.  241.  See  also  Ilarlaem  Canal  Co. 
1-.  Seixas,  2  Hall,  504;  Delaware  Canal  Co.  v.  Sansom,  1  Binn.  70. 

An  option  on  the  part  of  the  commissioners  to  reject  subscriptions  for 
stock,  does  not  make  them  less  binding,  unless  they  are  so  rejected.  Con- 
necticut &  Passumpsic  Railroad  Co.  v.  Bailey,  24  Vt.  465.  And  an  agreement 
made  at  the  time  of  subscription  inconsistent  with  its  terms,  and  resting  in 
parol  merely,  cannot  be  received  to  defeat  the  subscription.  lb.  In  a  case 
in  Kentuckv  this  subject  is  very  elaborately  discussed  by  counsel,  and  to  us, 
[*164,  *165J 


§  49.]  MODE   OF   ENFORCING   PAYMENT.  1G3 

the  company,  and  the  issuing  of  new  stock  in  lieu  of  the  forfeited 
shares,  the  subscriber  is  still  liable  for  any  deficiency.     The  cases 
all  regard  him  as  liable,  under  the  English  statutes,  to  a  personal 
action,  until  the  confirmation  of  the  forfeiture  of  his  stock.* 
4.  Jiut  in  the  House  of  Lords,^  it  seems  to  have  *  been  settled, 

very  justly  disposed  of  by  the  court.  McMillan  v.  Maysville  &  Lexington 
Railroad  Co.,  15  B.  Monr.  218.  It  was  there  held,  that  subscriptions  to  the 
stock  of  a  railway  company,  like  other  contracts,  should  receive  such  con- 
struction as  will  carry  into  effect  the  probable  intention  of  the  parties;  that  as 
the  stock  subscribed  is  the  means  by  which  the  road  is  to  be  constructed,  a 
subscription  for  stock,  on  condition  that  the  road  should  be  so  "  located  and 
constructed"  as  to  make  a  certain  town  "  a  point,"  imposes  on  the  subscribers 
the  duty  to  pay,  on  the  location  of  the  road  in  that  place;  and  that  the  construc- 
tion of  the  road  is  not  a  condition  precedent  to  the  right  to  recover  for  calls  on 
the  stock.  See  also  New  Hampshire  Central  Railroad  Co.  v.  Johnson,  10  Fost. 
N.  II.  390;  South  Bay  Meadow  Dam  Co.  v.  Gray,  30  Me.  547;  Greenville  &  Co- 
lumbia Railroad  Co.  v.  Cathcart,  4  Rich.  80;  Danbury  &  Norwalk  Railroad  Co. 
V.  Wilson,  22  Conn.  435.  An  agreement  to  take  and  fill  .shares  in  a  railway 
company,  is  an  agreement  to  pay  the  assessments  legallj^  made.  Bangor  Bridge 
Co.  V.  McMahon,  10  Me.  478;  Buckfield  Branch  Railroad  Co.  v.  Iri.sh,  39  Me. 
41;  Penobscot  &  Kennebec  Railroad  Co.  v.  Dunn,  39  Me.  587;  Penobscot 
Railroad  v.  Dummer,  40  Me.  172;  White  Mountains  Railroad  Co.  f.  East- 
man, 34  N.  II.  124.  So,  too,  an  agreement  to  take  shares  before  the  act  of 
incorporation  is  obtained,  creates  an  implied  duty  to  pay  calls  duly  made 
thereon.  Buffalo  &  New  York  City  Railroad  Co.  v.  Dudley,  14  N.  Y.  33G, 
The  general  subject  is  discuissed  somewhat  at  large  in  this  case,  and  the  re- 
sults arrived  at  confirm  the  doctrines  laid  down  in  the  text.  Rensselaer 
&  Washington  Plank  Road  Co.  v.  Barton,  16  N.  Y.  4.57.  The  same  rule  is 
mentioned  in  Fry  v.  Lexington  &  Big  Sandy  Railroad  Co.,  2  Met.  Ky.  314, 
where  the  question  of  the  extent  of  implied  obligation  assumed  by  subscrip- 
tion to  the  capital  stock  of  a  corporation  is  very  fully  and  fairly  illustrated. 

*  Great  Northern  Railroad  Co.  v.  Kennedy,  4  Exch.  417.  So  the  allottees  of 
shares  in  a  projected  railway  company  are  made  liable  for  a  proportionate  share 
of  the  expense.  UpfiU's  Case,  1  Sim.  n.  s.  395;  s.  c.  1  Eng.  L.  &  Eq.  13;  In  re 
Direct  Shrewsbury  &  Leicester  Railway  Co.,  1  Sim.  N.  s.  2sl ;  s.  c.  7  Sim.  x.  s. 
28;  London  &  Brighton  Railway  Co.  v.  Fairclough,  2  M.  &  C..C74;  Edinburgh, 
Leith,  &  Newhaven  Railway  Co.  v.  Hebblewhite,  0  M.  &  W.  707;  s.  c.  2  Railw. 
Cas.  237;  Birmingham,  Bristol,  &  Thames  Junction  Railway  Co.  r.  Locke,  1 
Q.  B.  2.56;  s.  c.  2  Railw.  Cas.  807;  Railway  Co.  v.  Graham,  1  Q.  B.  271 :  Ilud- 
dersfield  Canal  Co.  v.  Buckley,  7  T.  R.  30.  It  has  been  held,  that  a  shareholder 
cannot  absolve  himself  from  calls  by  paying  the  directors  a  sum  of  money  for 
his  discharge,  even  though  the  money  be  accepted,  and  the  shares  transferred. 
Ex  parte  Bennett,  18  Beav.  339  ;  s.  c.  5  Dc  G.  IM.  &  G.  281.     See  al.so  §  4,  supra. 

"  Inglis  V.  Great  Northern  Railroad  Co.,  1  Macq.  Ap.  Cas.  1112;  s.  c.  01 
Eng.  L.  &  Eq.  55.  See  also  Peoria  &  Oqnawka  Railroad  Co.  v.  Elting.  17  111. 
429;  Cross  r.  Mill  Co.,  17  111.  54.     But  where  the  deed  of  settlement  givea 

[*Ui«;j 


1G4:  ASSESSMENTS   OR    CALLS.  [PART   11. 

upon  great  consideration,  that  where  the  charter  or  general  stat- 
utes give  the  right  to  forfeit  the  shares,  or  to  collect  the  amount 
of  the  shareholder,  and  the  forfeiture,  sale,  and  cancellation  of 
the  shares  do  not  produce  the  requisite  amount,  the  company 
may  issue  new  shares  for  the  deficiency,  and  at  the  same  time 
maintain  an  action  for  it  against  the  former  owner. 

5.  It  seems  to  be  well  settled,  that  to  entitle  the  company  to  sue 
for  calls,  the  provisions  of  tlieir  charter,  and  of  the  general  laws 
of  the  state,  must  be  strictly  pursued.  And  if  the  shares  have 
been  forfeited  and  sold  without  pursuing  all  tlic  requirements  pro- 
vided in  sucli  case,  no  action  will  lie  to  recover  the  balance  of  the 
subscription.^  And  if  the  shares  be  sold  for  the  non-payment  of 
several  assessments,  one  of  which  is  illegal,  the  corporation  cannot 
recover  the  remainder  of  the  subscription."  But  where  the  by- 
laws of  the  company  prescribe  a  specific  mode  of  notice  to  the 
delinquent,  through  the  mail,  of  the  time  and  place  of  sale,  this  is 
not  to  be  regarded  as  exclusive,  but  other  notice  which  reaches 
the  party  in  time  will  be  sufficient.^ 

But  in  another  case  ^  the  law  in  regard  to  proceedings  in  forfeit- 
ure *  of  shares  is  held  very  strictly.     It  is  here  considered  that 

the  right  to  forfeit  the  shares  at  once,  or  to  enforce  the  payment,  if  they 
should  think  fit,  a  judgment  for  the  amount  due  is  a  bar  to  any  subsequent 
forfeiture.  Giles  v.  Ilutt,  3  Exch.  18.  And  where  the  charter  of  the  com- 
pany provides  that  the  shares  of  a  delinquent  shareholder  "shall  be  liable  to 
forfeiture,  and  the  company  may  declare  the  same  forfeited  and  vested  in  the 
company,"  the  option  in  declaring  such  forfeiture  is  in  the  company,  and  not  in 
the  shareholders.     Northeastern  Railroad  Co.  v.  llodrigues,  10  Rich.  S.  C.  278. 

6  Portland,  Saco,  &  Portsmouth  Railroad  Co.  v.  Graham,  11  Met.  1. 

■^  Stoneham  Branch  Railroad  Co.  v.  Gould,  2  Gray,  277. 

8  Lexington  &  West  Cambridge  Railroad  Co.  v.  Chandler,  13  Met.  311. 
And  where  the  charter  requires  certain  notice  of  the  instalment  becoming 
due,  the  publication,  and  oral  evidence  of  its  being  repeated  the  requisite 
number  of  times,  are  prima  facie  evidence  of  compliance  without  producing 
all  the  papers.  Unthank  v.  Henry  County  Turnpike  Co.,  6  Port.  125.  And 
in  a  later  case,  Anderson  v.  Ohio  &  Mississippi  Railroad  Co.,  11  Ind.  1G9, 
where  the  charter  limited  the  amount  of  calls  to  ten  per  cent  per  annum,  and 
ten  per  cent  had  been  paid,  a  call  was  held  suflicient  without  specifying  the  place 
of  payment  or  the  percentage  to  be  paid,  only  five  calls  remaining  witliin  the 
power  of  the  directors,  and  the  notice  fixing  the  time  and  place  of  payment. 

^  Lewey's  Island  Railroad  Co.  r.  Bolton,  48  Me.  451.     The  rules  as  to 
wliat  is  requisite  to  constitute  a  valid  subscription  to  a  stock  and  to  justify 
calls,  are  much  considered  in  the  recent  case  of  Maltby  i*.  Northwestern  Vir- 
ginia Railroad  Co.,  IG  Md.  422. 
[*167] 


§  4V>.]  MODE   OF   ENFORCING    PAYMENT.  iGo 

notice  must  he  privcri  in  tho  precise  time  and  in  the  exact  form  re- 
quired by  statute,  and  that  the  sale  must  in  all  rcsj)ects  corresj»ond 
precisely  with  the  requirements  of  the  pruvisions  of  tho  hiw.  'riie 
rule  is  carried  so  far  here  that  postinj^  notice  in  a  public  place  was 
lield  no  sullicient  compliance  with  the  law  requirin;^  jt  to  be  in  a 
"  conspicuous  "  place  ;  and  it  was  here  considered  that  subscrip- 
tions to  preferred  stock  could  not  be  reckoned  to  make  up  the 
requisite  amount  of  capital  to  enable  the  corporation  to  go  into 
ojjeration. 

6.  But  notice  tliat  sliares  in  a  railway  corporation  will  be  sold 
for  non-[)aymcnt  of  assessments  on  a  day  fixed,  and  by  an  auc- 
tioneer named,  who  is  and  has  long  been  an  auctioneer  in  the 
place  at  which  the  notice  bCars  date,  is  insufficient  if  it  do  not 
name  the  place  of  sale.^^ 

7.  The  validity  of  calls  cannot  be  called  in  question  upon  the 
ground  that  the  directors  making  the  same  are  acting  iji  the  in- 
terest and  for  the  benefit  of  a  rival  company,  and  have  in  conse- 
quence unnecessarily  retarded  the  construction  of  the  company's 
works.''     But  the  directors  must  be  duly  appointed.'^ 

8.  And  the  proceedings  in  making  the  calls  must  have  been 
suljstantially  in  conformity  with  the  charter  and  by-laws  of  the 
company  and  the  general  laws  of  the  state  at  the  time  of  mak- 
ing the  same.  Any  subsequent  ratification  by  the  directors  of 
an  informal  call  will  only  give  it  effect  from  the  date  of  the 
ratification.'^ 

0.  A  subscriber  who  has  executed  the  deed  of  settlement,  ]iur- 
chased  shares  and  received  dividends  upon  the  same,  is  not  at 
lil)erty  to  object  to  their  validity  upon  the  ground  that  the  coin- 
])any  were  by  the  deed  of  settlement  authorized  to  issue  shares 
for  XlOO,  and  these  were  issued  as  half  shares  at  £ijO  ;  this 
acquiescence  estops  him  from  doing  so.'* 

10.  It  seems  that  unless  the  constitution  of  the  corporation  or 
the  general  laws  of  the  state  contain  a  provision  justifying  a  for- 

'°  Lexington  &  West  Canibridcfe.  Railroad  Co.  v.  Staples,  5  Gray,  520. 

"  Orr  r.  (Glasgow,  Airdrie,  &  Moiiklaiids  Junction  Railway  Co.,  3  Macq. 
Ap.  Cas.  7!)9;  s.  c.  6  .Tur.  n.  s.  877. 

^■^  Howbeach  Coal  Co.  v.  Teague,  5  II.  &  N.  151;  s.  c.  0  Jur.  n.  s.  275. 

"  Cornwall  Great  Consolidated  Mining  Co.  v.  Bennett,  5  H.  &  N.  423;  s.  c. 
6  Jur.  N.  8.  539;  Anglo  California  Gold  Mining  Co.  v.  Lewis,  G  II.  &  X.  174; 
8.  c.  6  Jur.  N.  8.  1370. 

"  Hull  Flax  &  Cotton  Co.  v.  Wellesley,  G  II.  &  N.  38. 

[*107] 


166 


ASSESSMENTS    OR   CALLS. 


[part  n. 


feiture  *  of  shares,  it  is  not  competent  for  the  majority  of  the 
shareholders  by  prospective  resohition  to  establish  a  regulation 
whereby  the  shares  shall  be  forfeited  upon  failure  to  comply  with 
the  requirements  of  such  resolution.^^  (a) 

11.  It  is  no  valid  reason  for  making  more  calls  than  are  justified 
by  the  constitution  and  laws  affecting  the  question,  that  some  of 
the  calls  were  not  regularly  made  and  were  therefore  void,  and 
were  not  paid  by  the  defendant.  It  should  appear  that  such 
irregular  calls  had  been  declared  void,  otherwise  the  directors  may 
have  secured  most  of  the  money  demanded  by  them.^^ 


SECTION   IV. 


Creditors  may  compel  Payment  of  Subscriptions. 


1.  Mandamus  to  compel  company  to  col- 
lect of  subscribers. 

2-4.  Amount  due  from  subscribers,  a 
trust  fund  for  the  benefit  of  creditors. 

5.  Same,  though  a  state  own  the  stock. 

6,  7.  Diversion  of  the  funds  from  credi- 

tors a  violation  of  contract  on  tlie 
part  of  the  company,  and  a  state 
law  authorizing  it  invalid. 
8,  9.  General  doctrine  above  stated  found 
in  many  American  cases. 


10.  Judgment  creditors  may  bring  bill  in 
equity. 

n.  Promoters  of  railways  liable  as  part- 
ners, for  expenses  of  procuring  char- 
ter. 

12.  Kailway  company  may  assign  calls 
before  due,  in  security  for  bona  Jide 
debt.  No  notice  required  to  per- 
fect assignment  against  attachments 
or  judgment  liens. 


§  50.  1.  By  the  present  English  statute,  the  creditors  of  a  com- 
pany may  recover  their  judgment  debts  against  shareholders  who 
have  not  paid  the  full  amount  of  their  shares,  to  the  extent  of  the 
deficiency.^  Before  this  statute,  it  was  considered  that  a  writ  of 
mandamus  would  lie,  to  compel  the  company  to  make  and  enforce 
calls  against  delinquents.^ 


15  Barton's  Case,  4  De  G.  &  J.  46. 

16  Welland  Railway  Co.  v.  Berrie,  6  H.  &  N.  416. 

1  Statute  8  &  9  Vict.  c.  IG,  §§  .30,  37. 

2  Waif.  Railw.  277 ;  Hodges  Railw.  106,  n.  (w) ;  Regina  v.  Victoria  Park  Co., 
1  Q.  B.  288,  where  the  opinion  of  the  court  very  clearly  intimates,  that  the 


(a)  Perrin  v.  Granger,  30  Vt.  595;  In  re  Long  Island  Railroad  Co.,  19 
Wend.  37. 

[*168] 


§  50.]     CREDITORS   MAY  COMPEL   PAYMENT  OF  SUBSCRIPTIONS.        lliT 

2.  In  this  country  this  (lucstion  has  arisen,  not  unfrequently,  in 
*  the  case  of  insolvent  companies,  no  such  j)rovision  existing  in 
most  of  the  states  as  that  of  tlie  Knglisli  statute  just  referred  to. 

8.  This  subject  is  very  extensively  examined  and  considered  by 
tlie  national  tribunal  of  last  resort,  in  a  case  of  much  importance 
and  delicacy ,3  and  the  following  results  arrived  at :  — 

4.  On  the  dissolution  of  a  corporation,  its  effects  are  a  trust- 
fund  for  the  payment  of  its  creditors,  wlio  may  follow  them  into 
the  hands  of  any  one,  not  a  bona  ficle  creditor,  or  purchaser  with- 
out notice;  and  a  state  law, which  dcfjrives  creditors  of  this  right 
and  appropriates  the  property  toother  uses, impairs  the  obligation 
of  their  contracts  and  is  invalid. 

5.  The  fact  that  a  state  is  the  sole  owner  of  the  stock  in  a 
banking  corporation,  does  not  affect  the  rights  of  the  creditors. 

6.  The  capital  stock  of  a  company  is  a  fund  set  apart  by  its 
charter  for  the  payment  of  its  debts,  wliieh  amounts  to  a  contract, 
with  those  who  shall  become  its  creditors,  that  the  fund  shall 
not  be  withdrawn  and  appropriated  to  the  use  of  the  owner,  or 
owners,  of  the  capital  stock. 

7.  A  law  which  dei)rives  creditors  of  a  corporation  of  all  legal 
remedy  against  its  property,  impairs  the  obligation  of  its  contracts 
and  is  invalid. 

8.  These  propositions,  with  the  exception  of  the  constitutional 
question,  in  regard  to  the  impairing  of  an  assumed  or  imjilied 
contract  with  the  creditors  of  the  corporation,  are  all  fully  sus- 
tained by  numerous  decisions  of  the  highest  authority  in  this 
coimtry. 

9.  Thus  in  the  case  before  ^fr.  Justice  Story,  in  the  Circuit 
Court ,^  (a)  it  was  held  that  the  capital  stock  of  a  corjioration  is  a 
trust-fund,  for  the  payment  of  its  debts,  and  being  so,  it  may,  ujjon 
general  principles  of  equity  law,  be  followed  into  other  hands,  so 

writ  of  mandamus  will  lie,  to  compel  the  company  to  enforco  the  payment  of 
culls,  where  it  appears  that  judgments  against  the  conii)any  remain  unsatisfied 
for  want  of  assets,  although  in  the  circumstances  of  the  case  it  was  thought 
unnecessary  to  issue  the  writ. 

*  Curran  v.  Arkansas,  15  How.  304. 

*  Wood  V.  Dummer,  3  Mason,  308. 

(a)  See  Sanger  v.  Upton,  91  U.  S.  Pottsville  Raih-oad  Co.  v.  :Malone,  85 
60.  And  see  Broughton  t'.  Pensacola,  Penn.  St.  ;5(j;  City  Insurance  Co.  v. 
93  U.   S.   268  ;    Shamokiu   Valley  &    Cotumercial  Bauk,  GS  111.  348. 

[♦109] 


168  ASSESSMENTS   OR   CALLS.  [PART  IL 

long  as  it  can  be  traced,  unless  the  holder  show  a  paramount 
title.*^  And  in  cases  where  the  capital  stock  or  assets  of  a  corpo- 
ration have  been  distributed  to  the  stockholders  without  provid- 
ing for  the  payment  of  its  debts,  a  court  of  equity  will  allow  the 
creditors  to  sustain  a  bill  against  tlie  shareholders,  to  compel  con- 
tribution to  the  payment  of  the  debts  of  the  company,  to  the  ex- 
tent of  funds  obtained  by  them,  whether  directly  from  the  com- 
pany, or  *  through  some  substitution  of  useless  securities  for 
those  which  were  good.^ 

10.  Where  a  corporation  have  abandoned  all  proceedings  under 
their  charter,  from  insolvency,  and  still  owe  debts,  the  subscrip- 
tions to  the  capital  stock  not  being  all  paid,  a  judgment  creditor 
may  proceed,  in  equity,  against  the  delinquent  shareowners,  tliere 
being  no  longer  any  mode  by  which  calls  upon  the  stock  may  be 
enforced,  under  the  provisions  of  the  charter,  or  by  action  at  law, 
in  favor  of  the  company.'' 

s  Adair  v.  Shaw,  1  Sch.  &  L.  243,  201.  See  Dayton  v.  Borst,  31  N.  Y. 
435. 

6  Nathan  v.  Whitlock,  9  Paige,  152;  s.  c.  3  Edw.  Ch.  215.  But  it  has 
been  held,  that  the  distribution  of  the  capital  stock  among  the  shareholders 
before  the  debts  of  the  company  are  paid,  leaving  no  funds  for  that  purpose, 
will  not  render  the  shareholders  liable  to  an  action  of  tort  at  the  suit  of  the 
creditors  of  the  company,  there  being  no  such  privity  as  will  lay  the  founda- 
tion of  an  action  at  law,  even  in  states  where  no  court  of  chancery  exists. 
Vose  V.  Grant,  15  ^lass.  505.  In  equity  the  suit  may  be  in  the  name  of 
the  receiver.  Nathan  ?'.  Whitlock,  supra.  Or  in  the  name  of  a  creditor, 
suing  on  behalf  of  himself  and  others,  standing  in  the  same  relation.  Mann  i'. 
Pentz,  3  Comst.  415,  422.  And  all  the  shareholders,  who  have  not  paid  their 
subscriptions,  should  be  made  parties  to  the  bill,  and  compelled  to  contribute 
proportionally.     lb. 

The  same  principle  is  recognized  in  numerous  other  cases.  Mumma  v. 
Potomac  Co.,  8  Pet.  281;  Wright  v.  Petrie,  1  Sm.  &  ^l.  Ch.  282,  319;  Nevitt 
r.  Port  Gibson  Bank,  6  Sm.  h  M.  513;  Ilightower  v.  Thornton,  8  Ga.  486;  Fort 
Edward  &  Fort  ^Miller  Plank  Road  Co.  v.  Payne,  17  Barb.  567;  Gillet  v.  Moody, 
3  Comst.  479.  In  the  last  named  case  the  hank,  of  which  the  plaintiff  was 
receiver,  had  transferred  specie  funds  to  defendant,  in  exchange  for  his  stock 
in  the  bank.  The  transaction  was  held  illegal,  and  the  defendant  was  com- 
pelled to  refund,  for  the  benefit  of  the  creditors  of  the  bank.  And  in  another 
case,  where  the  subscriber  to  a  bank,  which  became  insolvent,  assigned  all  his 
interest  in  the  bank,  it  was  held  not  to  exonerate  him  from  liability  to 
assessments  made  to  pay  debts  due  from  the  bank,  although  contracted  subse- 
quent to  the  assignment.  Dayton  i*.  Borst,  7  Bosw.  115.  See  also  Morgan  v. 
New  York  &  Albany  Railroad  Co.,  10  Paige,  290. 

'  Henry  r.  Vermillion  &  Ashland  Railroad  Co.,  17  Ohio,  187.     See  also 

[*l"70] 


§  50.]       CREDITORS   MAY   COMPEL   PAYMENT   OF   SUBSCRIPTIONS.       ICQ 

11.  It  is  lifld  under  the  English  statutes,  in  regard  to  fullv 
registered  companies,  which  never  go  into  full  operation,  but  liave 
to  be  closed  under  the  winding-up  acts,  that  a  shareholder,  who 
has  paid  up  the  full  amount  of  his  shares,  is  still  liable  to  jiay  the 
necessary  calls  to  defray  the  expenses  of  winding  up  the  com- 
pany, *  the  subscribers  to  such  joint-stock  companies,  under  the 
statute,  being  held  liable  to  the  same  extent  as  partners.^ 

12.  The  company  may  assign,  as  security  for  a  debt  due  from 
them,  an  existing  unpaid  call  upon  shares  not  yet  due,  and  if  the 
assignment  contains  a  power  of  sale,  that  will  not  invalidate  the 
assignment,  since  if  held  void,  a  court  of  equity  will  expunge  it, 
or  restrain  its  exercise,  and  it  cannot  have  any  effect  to  avoid  the 
assignment  until  acted  upon  ;  and  a  shareholder  from  whom  such 
call  is  due  will  be  affected  with  notice  of  the  assignment,  if  pre- 
siding at  the  meeting  when  it  was  made,  although  having  no 
further  knowledge  in  regard  to  it.^  But  it  was  doubted  if  any 
notice  were  required  to  perfect  an  assignment  in  security  of  a 
bona  fide  debt,  against  a  subsequent  judgment  or  attachment  lien. 
And  in  a  later  casc,'°  it  was  decided  that  no  notice  is  required  in 
such  case,  and  that  Watts  v.  Porter,^^  where  the  majority  of 
Queen's  Bench  held  such  notice  indispensable,  was  no  longer  law. 

Miers  i;.  Zanesville  &  Maysville  Turnpike  Co.,  11  Ohio,  273;  s.  c.  13  Ohio, 
197.  And  where  the  company  retains  its  organization  and  officers,  it  may  be 
compelled,  by  writ  of  mandamus,  to  enforce  calls  against  the  sliareholders  to 
the  extent  of  their  liability,  as  well  as  to  perform  other  duties.  Commonwealth 
r.  Lancaster,  5  Watts,  152. 

*  In  re  Sea,  Fire,  and  Life  Assurance  Society,  3  De  G.  M.  &  G.  459;  s.  c. 
23  Eng.  L.  &  Eq.  422.  The  form  of  proceeding  and  the  extent  of  responsi- 
bility is  extensively  considered,  as  to  delinquent  subscribers  to  an  insolvent 
corporation,  iu  Adler  v.  Milwaukee  Patent  Brick  Co.,  13  Wis.  57. 

•  Pickering  i-.  Ilfracombe  Railway  Co.,  Law  Rep.  3  C.  P.  235. 

w  Robiusou  i).  Nesbitt,  id.  264.  "  3  Ellis  &  B.  743. 

[nil] 


170 


ASSESSMENTS   OR   CALLS. 


[part  IL 


SECTION   V. 


Conditions  precedent  to  making  Calls. 


\.  Conditions    prececlent   must   be   per- 
formed before  calls. 

2.  Collateral,   or  subsequent   conditions 

otherwise. 

3.  Definite  capital  must  all  be  subscribed 

before  calls. 

4.  Same  where  defined  by  the  company, 

as  in  the  charter. 

5.  Conditional    subscriptions   not   to   be 

reckoned. 


6.  Legislature  cannot   repeal   conditions 

precedent. 

7.  Limit  of  assessments  cannot  be  ex- 

ceeded for  any  ])urpose. 

8.  Where  charter  fails  to  limit  stock,  cor- 

poration may. 

9.  Alteration  in  charter  reducing  amount 

of  stock. 


§  51.  1.  Conditions  precedent  must  be  complied  with,  before 
any  binding  calls  can  be  made.  Any  thing,  which,  by  the  express 
provisions  of  the  charter  or  the  general  laws  of  the  state,  is  made 
a  condition  to  be  performed  on  the  part  of  the  company,  or  its 
*  agents,  before  and  as  the  foundation  of  the  right  to  make  calls 
upon  the  subscriptions  to  the  stock  ;  or  where  the  thing  is  re- 
quired to  be  done  before  calls  shall  be  made,  and  is  an  important 
element  in  the  consideration  of  the  agreement  to  take  stock  in 
the  company,  it  should  ordinarily  be  regarded  as  a  condition 
precedent. 

2.  But  where  the  matter  to  be  done  is  rather  incidental  to  the 
main  design,  and  only  affects  the  enterprise  collaterally,  it  will 
commonly  be  regarded  as  merely  directory  to  the  company,  or  at 
most  as  a  concurrent  or  subsequent  condition,  to  be  enforced  by 
independent  proceedings,  and  in  the  performance  of  which  time  is 
not  indispensable.^ 

1  Carlisle  v.  Cahawba  &  Marion  Railway  Co.,  4  Ala.  70;  supra,  §  18;  Banet 
V.  Alton  &  Sangamon  Railway  Co.,  I'd  111.  504;  Utica  &  IScheuectady  Railway 
Co.  V.  Brinkerhoff,  21  Wend.  139.  This  last  case  is  an  action  on  a  special 
undertaking  to  pay  land  damages,  on  condition  that  the  company  would  locate 
its  road  so  as  to  terminate  at  a  particular  place,  which  the  company  alleged 
they  had  done,  and  defendant  was  held  not  liable,  for  want  of  mutuality,  the 
company  not  being  bound  by  the  contract.  But  it  admits  of  some  question 
whether  the  case  of  Utica  &  Schenectady  Railway  Co.  v.  Brinkerhoff,  supra, 
comes  fairly  within  the  principle  on  which  it  was  decided.  The  case  of  Cooke 
V.  Oxley  3  T.  R.  653,  which  was  relied  on  and  which  has  been  sometimes 
questioned,  is  an  obvious  case  of  want  of  consideration  on  the  part  of  defend- 
[*172J 


§  51.]  CONDITIONS    PRECEDENT   TO    MAKING    CALLS.  171 

*  And  where  the  company  voted  to  issue  six  hundred  additional 
shares  and  to  allow  each  stockholder  to  take  one  new  sliare  for 

ant,  it  being  a  mere  naked  refusal  of  goods,  for  a  fixed  time,  tlie  plaiiitifi"  in 
the  mean  time  having  an  election  to  take  them  or  not.  Cases  of  this  class 
are  numerous  and  sound,  resting  on  the  mere  want  of  consideration.  Burnet 
V.  Bisco,  4  Johns.  235.  But  where  such  an  option  is  given  upon  consideration, 
or  as  a  standing  offer,  and  in  the  mean  time  the  other  party  proceeds  to  perforin 
on  his  part,  the  contract  becomes  binding.  And  it  was  so  held,  in  the  case  of 
the  Cumberland  Valley  Railway  Co.  «.  Baab,  9  Watts,  458.  In  this  case  the 
inhabitants  of  a  portion  of  Ilarrisburg  made  a  subscription  to  induce  the  com- 
pany to  cross  the  river  at  a  particular  point,  and  build  its  depot  on  a  par- 
ticular street,  which  being  done,  the  subscribers  were  held  liable  to  pay  their 
subscriptions,  and  on  the  most  obvious  and  satisfactory  grounds. 

In  Henderson  &  Nashville  Railroad  Co.  v.  Leavell,  16  B.  Monr.  358,  it  was 
held,  that  a  subscription  conditioned  that  the  road  should  pass  through  a  cer- 
tain town  and  the  money  subscribed  be  expended  in  a  certain  county,  was  a 
valid  subscription.  If  a  subscription  for  stock  be  conditioned,  that  the  sub- 
scriber may  withdraw  his  subscription,  at  his  election,  if  the  whole  stock  be  not 
taken,  at  a  given  time,  and  he  pay  part  of  his  subscription  after  that  date,  he 
is  liable  for  the  balance,  unless  he  shows  the  failure  of  the  condition,  and  his 
own  election  in  a  reasonable  time  thereafter  to  withdraw.  Wilmington  & 
Raleigh  Railway  Co.  v.  Robeson,  5  Ire.  391.  On  a  subscription  on  condition 
that  the  road  should  "  pass  "  on  a  certain  route  through  a  certain  county,  it 
is  not  a  condition  precedent  to  the  right  to  demand  payment,  that  the  road 
should  be  actually  constructed  on  that  line;  it  is  sufficient  if  the  road  be  per- 
manently located  there.  North  Missouri  Railroad  Co.  v.  Winkler,  29  Mo.  318; 
Ashtabula  &  New  Lisbon  Railroad  Co.  v.  Smith,  15  Ohio  St.  328.  See  also 
Vicksburg,  Shreveport,  &  Texas  Railroad  Co.  v.  McKean,  12  La.  An.  638. 

In  Chamberlain  v.  Painesville  &  Hudson  Railroad  Co.,  15  Ohio  St.  225, 
where  a  subscription  was  made  for  a  given  number  of  shares  of  stock,  payable 
at  such  times  and  in  such  instalments  as  the  directors  might  prescribe,  pro- 
vided the  road  was  "permanently  located"  on  a  given  route,  and  a  freight 
house  and  depot  built  at  a  point  named,  it  was  held  that  on  the  permanent 
location  of  the  road  in  accordance  with  the  terms  proposed,  the  subscription 
became  absolute;  that  the  provision  in  relation  to  the  erection  of  the  buildings 
should  be  regarded  as  a  stipulation  merely,  and  not  a  condition  precedent ; 
tlie  giving  by  a  subscriber  of  his  note  for  the  balance  of  his  subscription,  and 
taking  therefor  a  receipt,  stipulating,  that  when  paid,  the  amount  of  the 
note  should  be  applied  on  his  stock,  was  prima  facie  a  waiver  of  conditions 
precedent.  But  this  last  is  denied  in  a  later  case,  Parker  v.  Thomas,  19  Ind. 
213.  Where  a  subscription  was  on  the  express  condition  that  the  company 
"should  locate  and  construct"  its  road  along  a  certain  route,  and  the  sub- 
scriber paid  one  instalment  and  part  of  the  second,  but  delayed  the  payment 
of  the  residue  until  the  company  suspended  operations,  after  which  payment 
was  refused  on  the  ground  that  though  the  road  had  been  located,  it  had  not 
h^iQii  constructed  according  to  the  condition  in  the  subscription;  it  was  held 

[*1T3] 


172  ASSESSMENTS   OR   CALLS.  [PAUT   IL 

*  every  two  hold  by  him,  if  lie  subscribed  for  the  same,  paid  a  cer- 
tain sum  and  gave  his  note  for  the  balance,  before  a  day  named  ; 

that,  the  promise  of  subscription  bein'^  precedent  to  tiiat  of  construction,  the 
subscriber  could  not  insist  on  performance  by  the  company,  while  he  refused 
performance  on  his  part,  and  that  the  road  having  been  located  as  stipulated, 
and  completed  so  far  as  the  means  of  the  company  would  allow,  there  was  a 
compliance  with  the  condition,  and  that  the  condition  was  not  a  condition 
precedent,  and  required  only  that  the  road  when  located  and  constructed 
should  occupy  the  route  designated.  Miller  v.  Pittsburg  &  Connellsville  Rail- 
road Co.,  40  Penn.  St.  237. 

Where  the  charter  required  subscriptions  by  responsible  persons  of  a  certain 
proportion  of  the  estimated  cost  of  the  work  before  entering  upon  the  con- 
struction, it  was  held  unnecessary  for  the  company  to  show  compliance  with 
this  requirement  in  order  to  enforce  calls.  Nor  does  the  right  to  make  calls 
depend  on  the  extent  or  nature  of  the  indebtedness  of  the  company;  nor  can  a 
subscriber  defend  against  calls  by  showing  that  some  of  the  subscriptions  neces- 
sary to  make  up  the  amount  requisite  to  bind  the  defendant  were  made  by 
persons  of  no  actual  or  reputed  pecuniary  responsibility,  unless  he  also  shows 
that  they  were  not  made  or  taken  in  good  faith.  Penobscot  Railroad  Co.  v. 
White,  41  Me.  512.  And  see  Penobscot  Railroad  Co.  i'.  Dummer,  40  Me.  172. 
And  the  bad  faith  cannot  be  shown  by  the  declarations  of  the  subscribers 
made  long  after  making  such  subscriptions.  lb.  Where  the  charter  of  a  cor- 
poration requires  that  a  certain  number  of  shares  shall  be  subscribed  before 
the  organization  of  the  conipany,  the  decision  of  the  majority  of  the  sub- 
scribers that  the  condition  has  been  complied  with,  and  the  actual  organiza- 
tion of  the  company  in  pursuance  of  the  decision,  are  binding  on  the  minority. 
lb.  But  this  will  not  preclude  the  minority  from  defending  on  the  ground 
that  the  proceedings  of  the  majority  were  in  bad  faith.  See  also  Taggart  v. 
West  Maryland  Railroad  Co.,  24  Md.  563.  And  where  the  subscriber  gives 
the  company  his  note  for  the  sum  required  to  be  paid  at  the  time  of  subscrip- 
tion, and  subsequently  pays  the  same,  his  subscription  is  binding,  and  makes 
him  a  member  of  the  company,  and  he  cannot  escape  the  responsibility  of  his 
position  on  account  of  any  previous  irregulai'ity.  Ogdensburg  Railroad  Co.  v. 
W^olley,  38  N.  Y.  118.  Sub.scribers  cannot  defend  against  calls,  on  the  ground 
that  subscriptions  were  taken  for  two  sections  of  the  road  without  distinguish- 
ing how  much  was  to  be  applied  on  each;  nor  on  the  ground  that  the  con- 
struction of  the  road  was  begun  before  a  certain  per  cent  of  each  subscription 
was  paid,  according  to  the  requirements  of  the  charter;  or  that  by  a  subse- 
quent statute  the  amount  of  capital  stock  required  to  build  the  road  had  been 
reduced  below  the  requirements  of  the  charter;  or  that  interest  had  been  paid 
on  subscriptions  according  to  the  recommendation  of  the  terms  of  subscription; 
or  that  the  charter  of  the  company  had  been  amended  by  extending  the  time 
for  completing  the  road.  Agricultural  Branch  Railroad  Co.  v.  Winchester, 
13  Allen,  29. 

See  also  Andrews  v.  Ohio  &  Mississippi  Railroad  Co.,  14  Ind.  16Q;  Eakrighfc 
V.  Logansport  &  Northern  Indiana  Railroad  Co.,  13  Ind.  404,  where  the  ques- 
[*174] 


§  51.]  CONDITIONS   PRECEDENT   TO    MAKING    CALLS,  173 

*  it  was  held  tlicrc  was  no  implied  condition  that  the  whole  six 
hundred  shares  should  be  issued,  and  the  failure  to  do  so  was  no 

*  <rr()und  for  allowing  an  action  to  be  maintained  for  the  money 
j)aid,  or  any  defence  to  the  notes  given  for  the  balauce.^ 

tion  of  controlling  written  subscriptions  by  oral  declarations  of  those  who  solicit 
them,  as  to  the  probable  route  of  the  road,  is  fuither  discussed  and  placed  on 
the  true  ground,  that  such  representations  can  have  no  effect,  unless  upon  the 
ground  of  fraud.  See  also  Parker  v.  Thomas,  19  Ind.  213;  Cunningham  v. 
Edgefield  &  Kentucky  Railroad  Co.,  2  Head,  23;  Brownlee  v.  Ohio,  Indiana, 
&  Illinois  Railroad  Co.,  18  Ind.  G8. 

There  are  some  cases  which  go  the  length  of  saying  that  as  the  directors  of 
a  railway  company  have  no  power  to  give  any  binding  assurance  as  to  the 
route  which  shall  be  finally  adopted,  it  being  their  duty  to  place  it  where,  in 
their  judgment,  the  public  good  requires,  it  is  the  folly  of  any  subscriber  to 
rely  on  such  representation,  and  that  even  where  it  could  be  shown  that  such 
representations  were  fraudulently  made,  to  induce  subscriptions,  and  had  the 
puri>osed  effect,  the  subscrii)tions  could  not  be  avoided  on  that  ground.  Elli- 
son V.  iNIobile  &  Ohio  Railroad  Co.,  30  IMiss.  572;  Walker  v.  Same,  3i  Mi.ss. 
21.').     See  also  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  11.  491. 

The  verbal  promise  of  the  agent  who  takes  subscriptions,  that  the  time  of 
payment  shall  be  delayed  beyond  the  time  named  in  the  charter,  is  not  bind- 
ing on  the  company.  Tliigpen  v.  Mississippi  Central  Railroad  Co.,  32  Miss. 
317. 

There  is  a  case  in  Vermont  (Connecticut  &  Passumpsic  Rivers  Railroad  Co. 
r.  Baxter,  32  Vt.  SO.j),  where  the  court  seem  to  hold,  that  where  the  subscrijv 
tion  defined  the  route  of  the  proposed  railway,  the  representations  of  the  agent 
who  carried  about  the  paper,  that  the  written  words  really  defined  one  partic- 
ular route,  and  not  another,  the  subscribers  themselves  being  equally  conusant 
of  the  facts  with  the  agent,  was  binding  on  the  company,  and  would  preclude 
recovery  of  calls,  if  the  road  were  not  located  on  the  route  indicated  by  the 
agent,  although  in  fact  so  located  as  to  comply  with  the  conditions  of  the 
written  subscription,  and  although  the  agent  acted  in  good  faith.  The  case 
is  not  one  of  such  importance  as  to  require  much  discussion,  but  it  may  be  ob- 
served that  the  decision  seems  to  adopt  the  oral  representations  of  the  agent  as 
part  of  the  written  contract  of  subscri[)tion,  whereas  the  subscriber  was  bound 
by  the  legal  construction  of  the  writing.  A  similar  question  arose  and  was 
more  reasonably  determined  in  McAllister  v.  Indianapolis  &  Cincinnati  Rail- 
road Co.,  15  Ind.  11.  The  subscription  there  was  unconditional,  and  the  sub- 
."soriber  took  his  certificate,  and  afterwards  kept  it  without  offering  to  surrender 
it.  But  at  the  time  of  the  subscription  the  company  promised  that  a  branch 
should  be  constructed  to  a  certain  place  where  the  subscriber  resided.  It 
was  held  that  the  parol  promise  to  construct  the  branch  could  not  be  proved 
as  part  of  the  written  contract  of  subscription,  and  hence  that  the  money  paid 
could  not  be  recovered  on  the  ground  of  a  breach  of  contract,  and  that  in  the 
circumstances  recovery  could  not  be  had  on  the  ground  of  fraud. 

"^  Nutter  V.  Lexington  &  West  Cambridge  Railroad  Co..  6  Gray.  85. 

[*lTo,  *.17G] 


174  ASSESSMENTS   OR   CALLS.  [PART   IL 

3.  It  is  an  essential  condition  to  making  calls,  in  those  com- 
panies wlierc  the  number  of  shares  and  the  amount  of  capital  is 
fixed,  that  the  whole  stock  shall  be  subscribed  before  any  calls  can 
lawfully  be  made.^  (a)  And  if  calls  are  made  before  the  requisite 
stock  is  subscribed,  although  the  subscription  is  completed  before 
action  brought,  no  recovery  can  be  had.*  But  it  has  been  held, 
that  the  general  provision  in  the  charter  of  a  railway  act,  that  so 
soon  as  <£  1,500,000  shall  have  been  subscribed,  it  shall  be  lawful 
for  the  company  to  put  in  force  all  the  powers  of  the  act  author- 
izing the  construction  of  the  railway,  and  of  the  acts  therein 
recited,  being  the  general  railway  acts,  did  not  require  such  sub- 
scription to  be  made  before  making  calls,  but  only  before  exercis- 
ing compulsory  powers  of  taking  land.^ 

*  4.  And  where  the  charter  provides  that  the  members  might 
divide  the  capital  stock  into  as  many  shares  as  they  might  think 

2  Stoneham  Branch  Railroad  Co.  v.  Gould,  2  Gray,  277;  Salem  Mill-Dam 
Co.  V.  Ropes,  6  Pick.  23;  s.  c.  9  Pick.  187;  s.  c.  1  Redf.  Am.  Railw.  Cas. 
89;  Cabot  &  West  Springfield  Bridge  Co.  v.  Chapin,  6  Cush.  50;  AVorcester  & 
Nashua  Railroiid  Co.  v.  Hinds,  8  Cush.  110;  Lexington  &  West  Cambridge 
Railroad  Co.  v.  Chandler,  13  Met.  oil;  New  Hampshire  Central  Railroad  Co. 
V.  Johnson,  10  Fost.  N.  H.  390;  Penobscot  Railroad  Co.  v.  Dummer,  40  Me. 
172. 

But  a  subscriber  for  shares  in  a  railway  company  is  liable  for  calls,  although 
by  a  subsequent  amendment  of  the  charter  of  the  company  the  capital  stock  is 
raised  to  a  sum  which  has  not  been  subscribed,  there  being  no  such  condi- 
tion, either  in  the  charter  of  the  company  or  the  terms  of  subscription,  at  the 
time  of  subscribing.  York  &  Cumberland  Railroad  Co.  v.  Pratt,  40  Me. 
447. 

The  records  of  the  company  are  evidence  that  subscriptions  to  the  requisite 
amount  have  been  made.  lb.  Same  v.  White.  20  Law  Rep.  689;  s.  c  41 
Me.  512;  Peake  v.  Wabash  Railroad  Co.,  18  111.  88. 

*  Norwich  &  Lowestoft  Navigation  Co.  v.  Theobald,  1  Moody  &  M.  151; 
Stratford  &  Moreton  Railway  Co.  v.  Stratton,  2  B.  &  Ad.  518.  And  see  Atlan- 
tic Cotton  Mills  V.  Abbott,  9  Cush.  423,  where  a  condition  in  a  subscription  for 
stock,  that  the  capital  stock  of  the  company  should  not  be  less  than  a  certain 
sum,  was  held  a  condition  precedent  to  making  calls. 

*  Waterford,  Wexford,  Wicklow,  &  Dublin  Railway  Co.  v.  Dalbiac,  6  Railw. 
Cas.  753;  s.  c.  4  Eng.  L.  &  Eq.  455.  But  the  American  cases  will  not  justify 
such  a  construction.  It  would  here  be  held  a  condition  precedent  to  the  right 
to  make  calls,  or  probably  even  to  maintain  a  corporate  existence. 

(a)  Bray  v.  Farwell,  81  N.  Y.  GOO;     Co.  v.  Preston,  35  Iowa,  118,  and  cases 
Allman   v.  Havana  Railroad  Co.,  88     there  collected. 
111.    521.      And   see  Peoria  Railroad 
1*111] 


§  51.]  CONDITIONS   PRECEDENT   TO    MAKING    CALLS.  ITo 

proper,  and  by  a  written  agreement  tlie  subscribers  fixed  the  eaj>- 
ital  stock  at  850,000,  divided  into  500  shares  of  8100  eaeli,  and 
only  one  hundi'cd  and  thirty-eight  shares  liad  been  subscribed,  it 
was  hehl  no  assessment  for  the  general  purposes  of  the  corporation 
could  be  made.^ 

5.  And  where  the  charter  of  a  railway  company  requires  their 
stock  to  consist  of  not  less  than  a  given  numljer  of  shares,  assess- 
ments cannot  be  made  before  the  required  number  is  taken.  And 
in  such  case  conditional  subscriptions  are  not  to  be  reckoned, 
even  where  the  condition  is  acceded  to  by  the  company,  if  the 
subscriber  still  repudiates  the  subscription,  on  the  ground  that 
the  condition  is  not  fully  performed  by  the  contract  drawn  up  in 
form.  And  the  plea  of  the  general  issue,  is  no  such  admission  of 
the  existence  of  the  company,  as  to  preclude  subscril)ers  from 
contesting  the  amount  of  subscriptions,  to  enable  the  company  to 
make  calls.^ 

"  Littleton  ^Manufacturing  Co.  v.  Parker,  14  N.  H.  543;  Contoocook  Valley 
Railroad  Co.  v.  Barker,  32  N.  H.  363. 

"Where  the  condition  of  a  bond  given  for  the  amount  of  a  railway  subscrip- 
tion was,  that  the  same  should  be  paid  when  the  road  was  "  completed"  to  a  cer- 
tain village,  it  was  held  that  the  condition  was  performed  when  the  road  wa.s 
made  to  the  suburbs  of  the  village,  in  such  a  manner  as  to  allow  daily  trains 
on  it,  carrying  all  the  freight  and  passengers  that  offered,  although  some  por- 
tion of  the  work  was  only  temporary.  O'Xeal  v.  King,  3  Jones,  517;  Chapman 
r  Mad  River  &  Lake  Erie  Railroad  Co.,  6  Ohio  St.  119. 

'  Oldtown  &  Lincoln  Railroad  Co.  v.  Veazie,  39  Me.  571.  Any  comli- 
lion  the  subscriber  sees  fit  to  annex  to  his  subscription  must  be  cojnplifd  with 
before  the  subscriber  is  liable  to  assessments.  Penobscot  &  Kenm-bec  Rail- 
road Co.  V.  Dunn,  39  Me.  587. 

A  condition,  that  not  more  than  five  dollars  on  a  share  shall  be  assessed  at 
one  time,  is  not  violated  by  two  or  more  assessments  being  made  at  one  time, 
if  only  five  dollars  is  required  to  be  paid  at  one  time.  lb.  Penobscot  Railroad 
Co.  V.  Dummer,  40  'Me.  172. 

And  whore  the  charter  of  the  company  requires  that  the  capital  stock  be 
not  less  than  a  certain  number  of  shares,  nor  more  than  a  certain  greater 
number,  and  authorizes  the  directors  to  assess  upon  the  smaller  number,  a.s 
Foon  as  subscribed,  and  from  time  to  time  to  enlarge  the  capital  to  the  maxi- 
mum amount  named  in  the  charter,  all  the  shares  to  be  equally  a.-'se.ssed ,  it  is 
not  necessary  for  tlie  company  to  define  its  capital,  within  the  prescribed 
limits,  before  making  calls.  White  Mountains  Railroad  Co.  r.  Eastman,  34 
X.  H. 124. 

It  is  doubtful  if  the  directors  of  a  railway  have  power  to  release  subscribers 
to  stock,  but  at  all  events,  where  the  release  is  optional  with  the  subscriber,  he 
must  make  his  election  to  be  released,  and  in  a  reasonable  time.     Penobscot  & 

[•ITTJ 


17G  ASSESSMENTS    OR   CALLS.  [PART   U. 

*  6.  And  wlicrc  the  charter  originally  required  11,000  sliares 
to  be  the  minimum,  and  when  less  than  10,000  were  subscribed 
the  company  was  organized,  and  the  subscriptions  accepted,  and 
assessments  made,  and  afterwards,  by  an  act  of  the  legislature, 
accepted  by  the  corporation,  the  minimum  was  reduced  to  8,000 
shares,  in  an  action  to  recover  assessments  made  on  defendant's 
shares,  before  and  after  such  alteration  of  the  charter,  it  was 
held :  (1.)  that  the  minimum  was  a  condition  precedent,  to  be 
fulfilled  by  the  corporation,  before  the  subscribers  were  liable  to 
assessments ;  (2.)  that  the  alteration  of  the  charter  would  not 
affect  prior  subscribers  ;  (3.)  that  the  defendant  would  not  be 
estopped  from  relying  upon  this  condition,  by  having  acted  as 
a  shareholder  and  officer  in  the  corporation,  and  contributed  tow- 
ards the  expenses  of  the  company ;  (4.)  that  corporators,  by  any 
acts  or  declarations,  cannot  relieve  the  corporation  from  its  obli- 
gation to  possess  the  capital  stock  required  by  its  charter.^ 

7.  Where  the  charter  of  a  railway  company  provided  for 
assessments  by  the  directors  of  the  company  upon  the  shares  of 
the  stock,  as  they  might  deem  expedient  and  necessary  in  the 
execution  and  progress  of  the  work,  provided  "  that  no  assess- 
ment shall  be  laid  upon  any  share  in  said  corporation  of  a  greater 
amount  than  one  hundred  dollars  in  the  whole,  .  .  .  and  if  a 
greater  amount  of  money  shall  be  necessary  to  complete  said 
road  it  shall  be  raised  by  creating  new  shares,"  it  was  held  that 
the  charter  limited  the  amount  of  all  the  assessments  to  one  hun- 
dred dollars  on  a  share,  and  that  assessments  beyond  that  sum, 
made  for  the  purpose  of  paying  the  debts  of  the  company,  were 
illegal.^ 

*  8.  Where  the  charter  of  a  railway  company  fails  to  fix  the 
number  of  shares  of  the  capital  stock,  it  must  be  presumed  to 
have  been  the  purpose  of  the  legislature  that  the  corporation 
should  limit  the  number.  And  this  must  be  done  before  any 
valid  assessments  can  be  made.  In  such  case,  if  the  number 
fixed  exceed  the  number  subscribed,  the  company  may  change 
the  number ;  but  the  assessments  must  be  made  upon  the  whole 
number,  and  if  an  assessment  be  made  before  the  number  ulti- 
mately fixed  is  subscribed,  it  will  be  irregular  and  void.     A  sub- 

Kennebec  Railroad  Co.  v.  Dunn,  supra.    See  also  Troy  &  Greenfield  Railroad 
Co.  V.  Newton,  8  Gray,  596. 

«  Great  Falls  &  Conway  Railroad  Co.  r.  Copp,  33  N.  H.  124. 
[*178,  *179J 


§  Oli.]         CALLS    MAY    RE    MADK    PAYABLK    UY    INSTALMENTS.  177 

Rcribor  who  has   ])aid   one  assessment  is  not  thereljy  preeliult.'d 
from  insisting;  upon  this  irregularity  in  defence  to  othei-s.'-* 

11.  Where  the  charter  of  a  railway  company  as  originally 
granted  limited  the  amount  of  stock  at  a  point  which  the  sub- 
scription never  reached,  but  by  a  subsequent  alteration  of  the 
charter  the  amount  of  the  capital  stock  was  reduced,  and  after 
the  subscrij)tions  reached  that  amount  the  company  was  duly  organ- 
ized, it  was  held  that  the  alteration  in  the  charter  did  not  release 
prior  subscribers.^*^     But  this  seems  questionable.^^ 


SECTION  VI. 

Calls  may  he  made  payable  by  Instalments. 

§  52.  It  was  at  one  time  considered  that  calls  made  payable  by 
instalments  were  invalid.^  But  it  seems  now  to  be  settled  that 
such  mode  of  making  calls,  where  the  directors  of  the  company 
have  an  unlimited  discretion  as  to  the  time  and  mode  of  requiring 
payments  of  the  subscriptions,  is  unobjectionable.^  But  where  the 
subscription  contains  a  provision,  that  payment  shall  be  made  at 
such  times  and  places  as  should  thereafter  be  directed  by  the 
directors,  and  shall  be  applied  to  the  construction  of  the  road, 
it  was  held,  that  the  sul)scription  did  not  become  payable,  until 
the  directors,  at  a  regular  meeting,  had  fixed  the  time  *  and  jdace 
of  payment.^  But  it  is  further  held,  in  this  case,  that  it  is  not 
necessary  to  give  notice  to  the  subscribers  of  the  time  and  [ilace 
of  payment.^  This  point  in  the  decision  seems  not  altogether  in 
accordance  with  the  usual  i)ractice  in  such  cases,  or  the  general 
course  of  decision  in  regard  to  calls,  which  upon  general  i)rin- 

'  Somerset  &  Kennebec  Railroad  Co.  r.  Cushing,  45  Me.  524. 
10  Bedford  Railroad  Co.  v.  Bowser,  48  Peuu.  St.  '29. 
"  Supra,  §  51,  pi.  6,  note  8. 

*  Ambergate,  Nottingham  &  Boston  &  Eastern  Junction  Railway  Co.  r. 
Coulthard,  5  Exch.  458;  Stratford  &  ^loreton  Railway  Co.  v.  Stratton,  2  B. 
&  Ad.  518. 

-  London  &  Northwestern  Railway  Co.  v.  McMichael,  G  Exch.  27:1;  Amber- 
gate,  Nottingham,  Boston,  &  Eastern  Junction  Railway  v.  Nnrcliffe,  6  Exch. 
629;  s.  c.  4  Eng.  L.  &  Eq.  461  ;  Birkenhead,  Lancashire,  &  Cheshire  Railway 
Co.  V.  Webster,  G  Exch.  277;  s.  c.  6  Railw.  Cas.  498. 

*  Ross  V.  Lafayette  &  Indianapolis  Railroad  Co.,  G  Ind.  297. 

VOL.  I.  — 12  [*180] 


178 


ASSESSMENTS   OR   CALLS. 


[part  n. 


ciplcs  must  be  notified  to  subscribers  before  an  action  can  be 
maintained.  But  where  the  subscription  is  made  payable  in 
instahiients  of  ten  per  cent  every  sixty  days  as  the  work  pro- 
gresses, it  is  not  important  that  any  formal  call  or  demand  be 
made  for  the  successive  payments.* 

Where  the  charter  gives  the  corporation  power  to  collect 
subscriptions  to  the  capital  stock  by  such  instalments  as  the 
president  and  directors  shall  deem  proper,  they  may  make  con- 
tracts with  subscribers  for  the  payment  of  subscriptions  in  any 
reasonable  instalments,  as  to  time  and  place,  and  if  such  con- 
dition were  ultra  vires,  it  would  render  the  whole  contract  void, 
and  not  the  condition  merely.^ 


SECTION  VII. 


Party  liable  for  Calls. 


1.    Subscribers  liable  to  calls. 
2, 6.    What   constitutes    subscription    to 
capital  stock. 

3.  How  a  purchaser  of  stock  becomes 

liable  to  the  company. 

4.  One  may  so  conduct  as  to  estop  him- 

self from  denying  his  liability. 

5.  Kegister  of  the  company  evidence  of 

membership. 

6.  Subscriptions  must  be  made  in  con- 

formity to  charter. 

7.  Transferee    liable    for    calls.       Sub- 

scriber also  in  some  cases. 


8.  Original  books  of  subscription  pri- 

mary evidence. 

9.  Secondary  evidence  admissible  when 

original  is  lost. 

10.  "What  acts  will  constitute  one  a  share- 

holder. 

11.  May  take  and  negotiate  or  enforce 

notes  for  subscriptions. 

12.  But  note  fraudulently  obtained  not 

enforceable. 

13.  Subscriptions    by   one  as    executor 

distinct    from    those    in    private 
capacity. 


§  53.  1.  All  the  original  subscribers  to  the  stock  in  a  railway 
company  are  usually  made  liable  to  calls,  by  the  charter  of  the 
company,  or  by  general  statute. 

2.  Some  question  has  arisen  in  the  English  courts,  as  to  what 
is  necessary  to  constitute  one  a  subscriber.  In  an  early  case^ 
*  upon  this  subject,  it  was  held,  that  the  word  "  subscriber,"  in  the 
act  of  parliament  constituting  the  company,  applied  only  to  those 

*  Breedlove  v.  Martinsville  &  Franklin  Railroad  Co.,  12  Lid.  114;  Smith 
V.  Indiana  &  Illinois  Railway  Co.,  12  Ind.  61. 

6  Roberts  v.  Ohio  &  Mobile  Railroad  Co.,  32  Miss.  373. 
1  Thames  Tunnel  Co.  v.  Sheldon,  6  B.  &  C.  341. 
[*181] 


§  53.]  PARTY    LIAIJLE    FOR    CALLS.  179 

who  had  stipulated  that  they  would  make  payment,  and  not  to  all 
those  who  had  advanced  money;  and  that  one,  who  was  named  in 
Hie  recital  of  the  act  as  one  of  the  orij^inal  proprietors,  and  who 
had  paid  a  deposit  on  cij^ht  shares,  but  who  had  not  sijnicd  anv 
contracts,  was  not  a  subscriber  within  the  meaning  of  the  act,  and 
not  liable  to  be  sued  by  the  directors  fur  calls  on  the  remainder  of 
such  shares. 

3.  This  is  the  generally  received  opinion  upon  that  subject,  in 
this  country.  In  one  case,^  a  plea  to  an  action  to  recover  calls 
on  stuck  subscriljcd,  that  another  j)erson  had  agreed  to  take  the 
stock,  and  that  the  commissioners  had  counted  this  stock  to  such 
other  person,  is  insufficient.  The  signature  of  the  first  subscriber 
should  have  been  erased,  and  that  of  the  other  substituted,  or 
something  done  to  hold  the  latter  liable.  A  subscriber  for  stock 
cannot  subrogate  another  person  to  his  obligation,  without  a  sul> 
stitution  of  his  name  upon  the  books  of  the  company,  or  some 
other  equivalent  act  recognized  by  the  charter  and  by-laws  of  the 
company. 

4.  But  the  principal  difficulty,  in  regard  to  liability  for  calls, 
arises,  where  there  have  been  transfers,  and  the  name  of  the 
transferee  not  entered  upon  the  buuks  of  the  company.  For 
whenever  the  name  of  the  vendee  of  shares  is  transferred  to  the 
register  of  shareholders,  the  cases  all  agree  that  the  vendor  is 
exonerated  (unless  there  is  some  express  jjrovision  of  law  by 
which  the  liability  of  the  original  subscriber  still  continues),  and 
the  vendee  becomes  liable  for  future  calls.^  And  the  vendee 
liaving  made  such  representation  to  the  company  as  to  induce 
tiiem  to  enter  his  name  upon  the  register  of  shares,  is  estopped  to 
deny  the  validity  of  the  transfer.*  And  even  where  the  party  has 
represented  himself  to  the  company  as  the  owner  of  shares,  and 
sent  in  scrip  certificates,  which  had  been  purchased  by  him, 
claiming  to  be  registered  as  a  proprietor  in  respect  thereof,  and 
had  received  from  the  company  receipts  therefor,  with  a  notice 
that  they  would  be  exchanged  *  for  sealed  certificates  on  demand, 

^  Rydor  v.  Alton  &  Sanpanion  Railroatl  Co.,  13  111.  .510. 

'  Sheffield  &  Ashton-uiulei-Lyne  &  ISLanchester  Railway  Co.  v.  Woodcock, 
2  Railw.  Cas.  522;  s.  c.  7  M.  &  W.  574;  London  Grand  Junction  Railway  Co. 
I'.  Freeman,  2  Raihv.  Cas.  468;  s.  c.  2  M.  &  G.  006;  wfrn,  §  54. 

*  Sheffield,  Ashton-under-Lyne  &  Manchester  Railway  Co.  v.  Woodcock, 
supra ;  Loudon  Grand  Junction  Railway  Co.  r.  Freeman,  supra. 

[*182] 


180  ASSESSMENTS    OR    CALLS.  [PART   11. 

he  was  held  estopped  to  deny  his  liability  for  calls,  although  his 
name  had  not  been  entered  upon  the  register  of  shareholders,  or 
any  memorial  of  transfer  entered,  as  required  by  the  act.^  And 
where  one  has  paid  calls  on  shares,  or  attended  meetings  of  the 
company,  as  the  proprietor  of  shares,  he  is  estopped  to  deny  such 
membership.^ 

5.  The  holders  of  scrip  certificates  are  properly  entered  as 
proprietors  of  shares  before  the  passing  of  the  act,  although 
they  have  neither  signed  the  parliamentary  contract,  nor  been 
original  subscribers ;  and  the  register-book  of  shareholders,  which 
is  required  by  the  statute  to  be  kept  in  a  prescribed  form  by  tlie 
company,  though  irregularly  kept,  is  prima  facie  evidence  who 
are  proprietors^ 

6.  The  subscription  for  stock,  to  be  valid,  must  be  made  in  con- 
formity with  the  act.  So  that  where  it  was  required  to  be  made 
in  such  form  as  to  bind  the  subscriber  and  his  heirs,  it  was 
deemed  requisite  to  be  made  under  seal.^  But  such  a  provision 
is  of  no  force  in  this  country,  simple  contracts  being  of  the  same 
force  as  against  heirs  as  specialties. 

7.  If  by  the  act  of  incorporation  the  shares  are  made  assigna- 
ble without  restriction,  and  no  express  provision  exists  in  regard 
to  the  party  liable  for  calls,  it  would  seem  to  follow,  upon  the 
general  principles  of  the  law  of  contract,  that  the  proprietor  of 
the  share,  for  the  time  being,  is  liable  for  calls.  And  where 
certain  formalities  are  requisite  in  the  transfer  of  shares,  and 
these  have  been  complied  with  on  the  part  of  the  transferee,  or 
waived  by  the  company  at  his  request,  his  liability  to  calls  then 
attaches.^     The  liability  of  the  original  subscriber  often  continues, 

6  Cheltenham  &  Great  Western  Union  Railway  Co.  r.  Daniel,  2  Q.  B.  281, 
and  Same  v.  Medina,  2  Railw.  Gas.  728.  And  this  being  matter  of  estoppel  in 
pais,  may  be  used  in  evidence,  in  answer  to  the  defence,  ■without  being  pleaded. 

^  London  Grand  Junction  Railway  Co.  v.  Graham,  2  Railw.  Cas.  870;  s.  c. 
1  Q.  B.  271. 

"<  Birmingham,  Bristol,  &  Thames  Junction  Railway  Co.  r.  Locke,  2  Railw. 
Cas.  807;  s.  c.  1  Q.  B.  2.j6. 

8  Cromford  &  High  Peak  Railway  Co.  v.  Lacey,  3  Y.  &  J.  SO.  See  supra, 
§  18,  note  2. 

^  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  36;  Aylesbury  Railway  Co. 
t".  Mount,  5  Scott,  New  Rep.  127;  "West  Philadelphia  Canal  Co.  v.  Innes,  3 
Whart.  198  ;  Mann  v.  Currie,  2  Barb.  294 ;  Hall  v.  United  States  Insurance 
Co.,  5  Gill,  484;  Bend  v.  Susquehannah  Bridge  Co.,  G  Har.  &  J.  128  ;  AngeU 
&  Ames  Corp.,  §  534. 

[*182] 


§  til].]  PARTY    LIAIJLK    FOR   CALLS.  181 

at  the  election  of  the  *  company,  after  tliat  Qfrainst  the  vendee 
attaches,  but  wlien  tlic  company  consent  to  accept  the  name  of  the 
transferee,  that  of  the  subscriber,  or  former  proprietor,  ceases.^'^ 

8.  It  seems  to  l)e  reu^arded  as  settled  law,  that  the  best  evi- 
dence of  an  ()ri<^inal  subs(n"ij»tion  to  the  capital  stock  of  a  railway 
company  is  the  production  of  the  ori<T:inal  subscription  book,  ov 
the  book  of  records  of  the  company  on  Avhich  the  subscriptions 
were  made.^^ 

9.  But  where  the  books  arc  shown  not  to  bo  in  the  proper 
place  of  deposit  and  custody,  and  no  trace  can  be  found  of  their 
present  existence  elsewhere,  secondary  evidence  is  admissible. 
And  the  court  decide  the  question  of  loss,  as  a  preliminary  one  to 
the  admission  of  the  secondary  evidence.^ ^ 

10.  One  vrho  accepts  a  subscription  made  by  another  on  his 
behalf,  and  pays  the  calls  made  thereon  and  receives  a  certificate 
of  ownership,  is  responsible  as  a  shareholder ;  and  it  makes  no 
difference  that  his  name  docs  not  appear  npon  the  transfer  books 
or  the  ali)habctical  list  of  stockholders  as  a  transferee  of  stock. 
And  one  may  become  a  shareholder  without  receiving  a  certili- 
cate  of  stock.^2 

11.  It  seems  clear  that  railway  comj)anies  may  accept  promis- 
sory notes  in  payment  of  subscriptions,  and  cither  negotiate  or 
enforce  them  by  suit.^^  The  questions  of  pleading  and  evidence 
which  may  be  raised  in  suits  upon  such  notes  are  extensively  dis- 
cussed in  the  case  last  cited. 

12.  And  wlicre  the  subscription  to  railway  stock  is  dependent 
upon  the  condition  that  no  calls  shall  be  made  until  work  should 
bo  begun  upon  a  particular  section  of  the  road,  and  the  subscriber 
was  induced  to  execute  his  note  for  the  amount  upon  Ww  rep- 
resentation of  the  agents  of  the  company  that  work  had  been 
so  coumuniced,  when  in  fact  it  had  not.  the  note  cannot  be  en- 
forced.'^ 

"  Infra,  §  51. 

"  GrafE  v.  Pittsburgh  &  Steubeuville  Railroad  Co.,  31  Penn.  St.  ISO. 
These  subscriptions  are,  iu  fact,  sometimes  made  on  different  books,  and 
then  brouglit  together  on  one  book,  for  tlie  purpose  of  pernianeut  preservation. 
But  it  would  seem  that  tliere  should  be.  evidence  of  the  original  subscrii>tion. 

'-  Burr  V.  "Wilcox,  G  Bosw.  19S. 

^^  Goodrich  v.  lleynolds,  31  111.  400.  See  also  Straus  r.  Eagle  Tii-ur:in.o 
Co  ,  5  Ohio  St.  59. 

1*  Tavlor  r.  Fletcher,  lo  Lid.  SO. 


182 


ASSESSMENTS    OR    CALLS. 


[part  IL 


*  13.  Subscriptions  in  the  capacity  of  executor  are  to  be  re- 
garded as  distinct  contracts  from  tliosc  in  the  personal  capacity 
of  the  subscriber,  so  tliat  the  pendency  of  a  suit  for  one  will  not 
abate  or  render  vexatious  a  subsequent  suit  for  the  other.^^ 


SECTION    VIII. 


Release  from  liahilitu  for  Calls. 


1,  2.  Where  the  transfer  of  shares,  witli- 
out  registry,  will  relieve  the  pro- 
prietor from  calls. 

3.   Where  shares  are  forfeited,  by  express 


condition,    subscriber    no    longer 
liable  for  calls. 
Dues  cannot  be  enforced  which  accrue 
upon  sliares  after  they  were  agreed 
to  be  cancelled. 


§  51.  1.  One  may  relieve  himself  of  his  liability  for  calls,  by 
the  transfer  of  his  shares,  and  the  substitution  of  the  name  of  his 
assignee  for  his  own  upon  the  books  of  the  company.  But  until 
this  change  upon  the  books  of  the  company  is  made,  they  are  at 
liberty  to  hold  the  original  subscriber  liable,  if  they  so  elect.^ 
But  where  the  act  of  incorporation  of  a  joint-stock  company  de- 
clared the  shares  should  be  vested  in  subscribers,  their  executors 
and  assigns,  with  power  to  the  subscribers  to  assign  their  shares, 
and  a  committee,  to  be  appointed  under  the  act,  were  authorized 
to  make  calls  upon  the  proprietors  of  shares,  it  was  held,  that  an 
original  subscriber,  who  had  transferred  his  shares,  was  no  longer 
liable  to  calls.^ 

2.  But  this  case  is  determined  upon  the  express  provisions  of 
the  charter  of  the  company.  The  general  rule  in  England,  at 
present,  under  their  consolidated  acts,  is  undoubtedly  as  stated 
above.  And  we  see  no  good  reason  why  it  should  not  equally 
apply  in  this  country.  It  would  seem  to  be  the  only  mode  of 
securing  the  ultimate  payment  of  calls.     But  some  of  the  cases 

15  New  York  City  &  Erie  Railroad  Co.  v.  Patrick,  30  N.  Y.  2.56. 

1  Supra,  §  47,  and  cases  there  cited.  In  Everhart  v.  West  Chester  &  Phila- 
delphia Railroad  Co.,  28  Penn.  St.  339,  it  is  said  that  a  transfer  of  stock, 
made  for  the  purpose  of  exonerating  a  subscriber,  without  the  consent  of  the 
company,  is  not  a  valid  defence  to  an  action  against  him  for  the  purchase- 
money  of  the  shares  subscribed.     Supra,  §  32. 

2  Huddersfield  Canal  Co.  v.  Buckley,  7  T.  R.  86,  42. 

[*184] 


§  54.]  RELEASE    FROM    LIAIilMTV    I'OU    CALLS.  183 

seem  to  assume,  that  the  mere  transfer  of  tlic  shares  in  the 
market  *  does  exonerate  the  subscriber  from  the  payment  of 
future  calls,  liut  this  depends  chiefly  upon  the  provisions  of 
particular  charters,  and  the  general  laws  of  the  state  apjilicablc 
to  the  subject.'^ 

3.  Where  shares  are  allotted  to  one  u])on  the  express  condi- 
tion to  be  forfeited  if  a  certain  deposit  is  not  ])aid  in  a  cei'tain 
time,  and  nothing  more  is  done  by  tiie  allottee,  he  is  not  liable 
for  calls,  although  the  company  have  entered  his  name  upon  the 
register  of  shares  as  a  shareholder.^ 

4.  Where  the  corporation  resolve  to  release  subscribers  and  to 
cancel  their  stock  upon  making  certain  payments,  wliich  arc 
made  and  the  stock  cancelled,  the  comj)any  cannot  enforce  any 
dues  on  such  shares  which  subsequently  accrue,^  since  the  for- 
mer arrangement  amounted  to  an  accord  and  satisfaction  of  all 
claim  on  the  i)art  of  the  company.  ]>ut  if  the  company  thereby 
matei-ially  lessened  the  remedy  of  creditors,  they  might  possibly 
interfere. 

8  In  West  rhiladelphia  Canal  Co.  v.  Innes,  3  Whart.  198.  it  was  held, 
tliat  where  the  proprietor  of  shares  of  the  plaintiff's  stock  transferred  tliem  on 
the  books  of  the  company,  after  calls  were  made,  but  before  they  fell  due, 
tlie  transferee  was  liable  for  such  calls,  although  he  had  iiever  received  certi- 
ficates, or  given  notice  of  tlie  acceptance  of  the  transfer.  And  it  was  held  to 
make  no  difference,  that  tlie  transfer  was  from  an  original  subscriber,  with- 
out consideration.  Mann  i'.  Pentz,  2  Sandf.  Ch.  258;  Hartford  &  New  Haven 
Railroad  Co.  v.  Boorman,  12  Conn.  530;  Aylesbury  Railroad  Co.  r.  Mount,  5 
Scott,  New  Rep.  127. 

*  Waterford,  Wexford,  Wicklow,  &  Dublin  Railway  Co.  v.  I'idcock,  IS  Eng. 
L.  &  Eq.  517;  s.  c.  17  Jur.  2G;  s.  c.  22  Law  T.  Rep.  x.  s.  1 IG;  s.  c.  S  Exoh. 
279.  Where  the  company  accepts  a  conveyance  of  .shares  to  itself  it  will  ex- 
onerate the  owner  from  calls.  But  a  sale  to  anotlier  company  of  all  the 
effects  of  the  company  will  not  release  the  shareholders  from  calls  already 
made.     Plate  Glass  Insurance  Co.  v.  Sunlcy,  8  Ellis  &  B.  47. 

^  Miller  c.  Second  Jefferson  Building  Association,  50  Penn.  St.  32.  And 
where  the  company  accepts  another  in  tlie  place  of  the  original  subscriber, 
the  latter  is  wholly  released.     Ilaynes  c.  Palmer,  13  La.  An.  210. 

[*185] 


184 


ASSESSMENTS   OR   CALLS. 


[part  n. 


^SECTION  IX. 


Defences  to  actions  for  Calls. 


1.  Informality   in  organization   of  com- 

pany insufficient. 
n.  (a).  Fraud  ns  a  defence,  in  general. 

2.  Slight  acquiescence  estops  the  party 

in  some  cases. 

3.  4.  Default  in  first  payment  insufficient. 
5.   Company  and  subscriber  may  waive 

that  condition. 


6.    Contract  for  stock,  to  be  paid  in  other 

stock. 
7,8.   Infancy.     Statute  of  limitations  and 

bankruptcy. 

9.  One  commissioner  can  give  no  valid 

assurance  as  to  the  route. 

10.  What     representations     matters    of 

opinion. 


§  55.  1.  It  is  certainly  not  competent  for  a  subscriber,  when 
sued  for  calls,  to  go,  in  his  defence,  into  every  minute  deviation 
from  the  express  requirements  of  the  charter,  in  the  organization 
and  proceedings  of  the  company,  (a)  Any  member  of  the  associa- 
tion, who  intends  to  hold  the  company  to  the  observance  of  those 
matters  which  are  merely  formal,  should  be  watchful,  and  inter- 
pose an  effectual  barrier  to  their  further  progress,  at  the  earliest 


(a)  The  contract  of  the  subscriber, 
like  contracts  in  general,  is  voidable 
for  fraud.  Vreeland  v.  New  Jersey 
Stone  Co.,  29  N.  J.  Eq.  190;  City 
Bank  v.  Bartlett,  71  Ga.  797 ;  Central 
Railway  Co.  v.  Rich,  Law  Rep.  2  H.  L. 
99;  Montgomery  Southern  Railroad 
Co.  V.  Matthews,  77  Ala.  307.  And 
see  14  Am.  Law  Rev.  177,  for  an  essay 
on  this  general  subject.  A  false  rep- 
resentation, to  be  ground  of  avoid- 
ance, must  not  be  as  to  matters  of  law, 
which  every  one  is  supposed  to  know. 
Upton  V.  Trebilcock,  91  U.  S.  45. 
Nor,  for  the  same  reason,  as  to  the 
contents  of  the  charter  or  as  to  the 
legal  effect  of  the  subscription.  New 
Albany  Railroad  Co.  r.  Fields,  10  Tnd. 
187;  Ellison  v.  Mobile  &  Ohio  Rail- 
road Co.,  3(3  Miss.  072;  Selma  Railroad 
C6.  V.  Anderson,  51  Miss.  829.  A  false 
representation,  however,  as  to  the  con- 
tents of  the  subscription  paper,  e.  g. 
to  a  subscriber  who  cannot  read,  may 
[*186] 


be  ground  for  avoidance.  Wert  v. 
Crawfordsville  Turnpike  Co.,  19  Ind. 
242.  But  representations  must  be  of 
matters  of  fact,  not  matters  of  mere 
opinion.  Union  National  Bank  v. 
Hunt,  76  Mo.  439.  Nor  may  they 
amount  to  promises.  If  promises, 
they  should  be  incorporated  with  the 
contract,  and  cannot  be  received  in 
evidence,  under  the  settled  rule,  to 
vai-y  the  written  instrument.  Tliis 
applies  to  representations  that  the 
road  shall  be  built  on  a  certain  route, 
or  within  a  specified  time.  Choteau 
Insurance  Co.  v.  Floj'd,  74  Mo.  286. 
And  so,  the  general  drift  of  the  cases, 
thougli  there  are  some  cases  the  other 
way.  Of  course  the  representations 
must  have  misled,  must  have  been 
material,  and  must  have  been  within 
the  scope  of  the  powers  of  the  agent 
who  made  them.  This  is  elementary 
in  the  law  of  fraud. 


§  ')').]  DEFENCES  TO  ACTIONS  FOR  CALLS.  185 

upportunity,  by  mandamus,  or  injunction  out  of  chancery,  or 
other  api)ropriate  mode.^  In  cases  of  this  kind  often,  where  vast 
expense  has  been  incurred  and  important  interests  are  at  stake, 
courts  will  incline  to  conclude  a  member  of  the  association,  bv 
the  briefest  acquiescence  in  any  such  immaterial  irre^ndaritv,  and 
often,  in  regard  to  those,  which,  if  urged  in  season,  might  have 
been  regarded  as  of  more  serious  moment.  In  one  case,^  Tindal, 
C.  J.,  says,  in  regard  to  the  offer  of  a  i)lea,  that  tlie  money  sued 
for,  being  the  amount  of  a  call,  was  intended  for  other  purjioses 
than  those  warranted  by  the  act,  "  It  seems  to  me  it  was  never 
intended,  nor  ought  it  to  be  allowed,  that  so  general  a  (juestion  as 
that  should  be  litigated,  in  the  question,  whether  a  call  is  due 
from  an  individual  subscriber.  "  And  it  was  held  no  sufllcient 
ground  of  enjoining  the  directors  from  making  calls,  that  the 
proceedings  had  been  such  as  to  amount  to  an  abandonment  of 
the  enterprise,  as  it  was  possible  that  there  were  still  legal 
obligations  *  to  answer.^  And  where  the  directors  were  author- 
ized to  limit  the  number  of  shares,  but  could  not  proceed  with  the 
road  until  two  hundred  and  fifty  shares  were  subscribed,  and 
after  that  number  wei'C  taken  they  resolved  to  close  the  books,  it 
was  held  that  this  vote  was  equivalent  to  a  vote  fixing  the 
immber  of  shares,  and  that  the  company  might  therefore  proceed 
to  make  and  enforce  calls,  under  the  statute,  and  to  collect  the 
deficiency  remaining,  after  the  sale  of  forfeited  stock."^ 

2.  But  where  the  statute  prescribes  the  terms  on  which  shares 
may  be  sold,  it  must  be  strictly  followed  or  the  sale  will  be  void, 
as  where  the  prescribed  notice  is  not  given.*     And  it  would  seem, 

J  London  &  Riighton  Railway  Co.  r.  Wilson,  6  Ring.  X.  C  135  Tliis 
case  decides,  that  a  plea  that  the  company  has  made  deviations  in  the 
line,  and  that  the  money  sued  for  is  needed  only  for  such  deviations,  cannot 
bo  entertained  or  regarded  as  a  proper  inquiry  in  an  action  for  calls  on 
shares;  and  so  also  of  a  plea,  that  fewer  shares  have  been  allotted  than  the  act 
requires.  Waif.  Railw.  279;  Wight  t-.  Shelby  Railroad  Co.,  16  B.  Monr.  b. 
Xor  can  a  .shareholder  defend  against  a  suit  to  enforce  his  personal  liability 
for  the  debts  of  the  corix)ration,  on  the  ground  of  defects  in  tlie  organi- 
zation of  the  company;  especially  where  he  ha.s  acted  as  a  menibor,  and  his 
name  so  appeared,  when  the  debt  was  contracted.  Eaton  v.  Aspiuwall,  19 
N.  Y  119. 

'  Logan  I'.  Courtown,  5  Eng.  L.  &  Eij.  171. 

«  Lexington  &  West  Cambridge  Railroad  Co.  v.  Chandler,  13  >ret.  311. 

*  Portland,  Saco.  &  Portsmouth  Railroad  Co.  v.  Graham,  11  .Met.  1. 

[*18T] 


18G  ASSESSMENTS   OR   CALLS.  [PART   IL 

that  the  courts  are  reluctant  to  admit  defences  to  actions  for 
calls,  upon  the  ground  of  informality  in  the  proceedings  of  the 
company,  or  even  of  alleged  fraud,  where  there  has  been  any 
considerable  acquiescence  on  the  part  of  the  shareholder.^ 

3.  It  seems  to  have  been  held,  in  seme  cases,  that  a  subscriber 
for  stock  may  defend  against  an  action  for  calls,  upon  the  ground 
that  he  did  not  pay  the  amount  required  by  the  charter  to  be  paid 
down  at  the  time  of  subscription.^ 

4.  But  it  is  questionable  how  far  one  can  be  allowed  to  plead 
his  own  non-performance  of  a  condition  in  discharge  of  his  under- 
taking. And  a  different  view  seems  to  have  obtained  to  some  ex- 
tent.'' It  has  been  held  the  stockholder  cannot  object  that  he  has 
not  complied  with  the  charter,  after  having  voted  at  the  election  of 
officers,  or  otherwise  acted  as  a  shareholder.^  And  so  also  where 
*  the  subscription  is  made,  while  defendant  held  the  books  of  the 

6  Waif.  Kailw.  278,  279;  Cromford  &  High  Peak  Railway  Co.  r.  Lacey,  3 
Y.  &  J.  80;  Mangles  v.  Grand  Collier  Dock  Co.,  10  Sim.  519;  s.  c.  2  Raiiw. 
Cas.  359;  Thorpe  c.  Hughes,  3  Myl.  &  C.  742. 

^  Higliland  Turnpike  Co.  v.  ^McKean,  11  Johns.  98;  Jenkins  v.  Union 
Turnpike  Co.,  1  Caines  Cas.  86;  Hibernia  Turnpike  Co.  v.  Henderson,  8  S.  & 
R.  219 ;  Charlotte  &  South  Carolina  Railroad  Co.  v.  Blakely,  3  Strob.  Law,  245. 

'  Henry  v.  Vermillion  &  Ashland  Railroad  Co.,  17  Ohio,  187.  A  similar 
rule  is  recognized  in  Louisiana,  in  the  case  of  Yicksburg,  Shreveport,  &  Texas 
Railroad  Co.  v.  ^NIcKean,  12  La.  An.  638. 

8  Clark  V.  Monongahela  Navigation  Co.,  10  Watts,  364.  Nor  can  a  sub- 
scriber, after  having  transfei-red  his  stock  to  another,  thus  treating  it  as 
a  valid  security,  object,  in  the  trial  of  a  suit  against  him  on  the  original 
subscription,  that  the  same  was  originally  invalid,  by  reason  of  the  non- 
payment of  the  sums  requisite  to  give  it  validity,  at  the  time  of  making  the 
subscription.  Everhart  v.  West  Chester  &  Philadelphia  Railroad  Co.,  28 
Penn.    St.  339. 

Where  commissioners  were  appointed  by  the  legislature,  and  authorized  to 
receive  subscriptions  for  a  railway,  no  subscription  to  be  valid  unless  a  certain 
sum  was  paid  on  each  share  at  the  time  of  subscribing,  letters-patent  to  be 
issued  by  the  governor  on  subscription  of  a  certain  number  of  shares  certified 
to  by  the  commissioners,  it  was  held  that  the  act  imposed  no  restriction  on 
the  corporation  after  it  was  organized,  relative  to  payment  at  the  time  of 
subscription;  that  the  condition,  that  subscriptions  should  not  be  valid  till  a 
certain  amount  was  subscribed,  was  one  which  the  parties  had  a  right  to 
annex  to  the  contract,  and  so  valid;  and  that  the  subscriptions  could  not 
be  enforced  till  the  condition  was  performed.  Philadelphia  &  West  Chester 
Railroad  Co.  v.  Hickman,  28  Penn.  St.  318.  See  also  Black  River  &  Utica 
Railroad  Co.  v.  Clarke,  25  N.  Y.  208;  Haywood  &  Pittsborough  Plank  Road 
Co.  V.  Brvan.  6  Jones,  N.  C.  82;  Piscataqua  Ferry  Co.  v.  Jones,  39  N.  H.  491. 

[*i87] 


§  55.]  DEFENCES  TO  ACTIONS  VOW   CALLS.  187 

company  and  acted  as  commis.siunur/'*  And  payment  before  the 
books  are  closed  has  been  held  suflicient  to  bind  the  subscriber.*'' 
So  also  if  the  sum  have  been  collected  by  suit.'*  And  a  prom- 
issory note  has  been  held  good  payment,  where  the  cliarter  re- 
quired cash  on  the  first  instalment,  at  the  time  of  subscription. '- 
And,  by  ])arity  of  reason,  if  the  subscription  binds  the  subscriber 
to  pay  for  the  stock  taken,  in  conformity  to  the  re(iuisitlons  of  the 
charter,  Avliich  is  the  more  generally  received  notion  upon  the  sub- 
ject at  present,  we  do  not  well  comprehend  why  the  subscri|)tion 
itself  may  not  be  regarded  as  effectual  to  create  the  subscriber  a 
stockholder,  and  as  much  a  compliance  with  the  condition  to  pay 
as  giving  a  promissory  note.  In  either  case,  the  company  obtain 
but  a  right  of  action  for  the  money,  and  if  the  |)arty  can  be 
allowed  to  urge  his  own  default  in  defence,  it  is  perhaps  no  com- 
])liance  with  the  charter.  But  upon  the  ground  that,  so  far  as  the 
subscriber  is  concerned,  the  company  may  waive  this  condition, 
upon  what  is  etiuivalcnt  to  payment,  it  ought  also  to  be  equally 
held,  that  when  *  the  suljscriber  has  obtained  such  a  waiver, 
for  his  own  ease,  he  shall  be  estopped  to  deny  that  it  was  so  far 
a  comjtliance  with  the  charter  as  to  render  the  contract  binding. 

5.  And,  upon  the  other  hand,  the  comj)any  having  consented  to 
accept  the  subscriber's  promise,  instead  of  money,  for  the  first 
instalment,  cannot  defeat  his  right  to  be  regarded  as  a  stock- 
holder, on  account  of  his  not  complying  with  a  condition  which 
they  have  expressly  waived.  It  would  seem,  that  under  these 
circumstances,  the  immediate  parties  to  the  contract  could  not 
obtain  any  advantage  over  each  other,  by  reason  of  the  waiver 
of  strict  performance  of  such  condition,  by  mutual  consent.  Ihit 
the  objection  must  come  properly  from  some  other  (piarter,  eitlicr 
the  ])ublic,  or  the  other  shareholders.  And  possibly  the  cases 
decided  upon  this  subject  do  not  justify  any  such  relaxation,  even 
between  the  parties  to  the  immediate  contract  of  subscrijttion. 

»  Highland  Turnpike  Co.  i-.  McKean,  11  Johns.  98;  Grayblo  v.  York  & 
Gettysburg  Turnpike  Co.,  10  S.  &  R.  209.  So  also  if  one  act  a.s  a  stockholder 
in  the  organization  of  the  company.  Greenville  &  Columbia  Railroad  Co.  v. 
Woodsides,  5  Rich.  1-15. 

10  Klein  v.  Alton  &  Sangamon  Railroad  Co.,  1.3  111.  .")U. 

"  Hall  V.  Selma  ^  Tennessee  Railroad  Co..  G  Ala.  741. 

1-  McRae  v.  Russell,  1'2  Ire.  221 ;  Selma  &  Tennessee  Railroad  Co.  r.  Tipton, 
5  Ala.  787;  Tracy  i'.  Yates,  18  Barb.  152;  Greenville  &  Columbia  Railroad  Co. 
I".  Woodsides,  5  Rich.  145;  Mitchell  v.  Rome  Railroad  Co..  17  Ga.  .574. 

[*188,  *180J 


188  ASSESSMENTS    OR   CALLS.  [PAIIT   IL 

Upon  general  principles  applicable  to  the  subject,  as  educed  from 
the  law  of  contracts,  we  see  no  objection  to  the  waiver  of  such  a 
condition  on  behalf  of  tlie  company.  And  if  there  be  any  objection 
upon  other  grounds,  it  is  not  for  the  benefit  of  the  subscriber.^^ 

18  It  has  been  held  that  the  misstatement  of  tlie  length  of  the  road,  in  the 
articles  of  association,  if  there  be  no  fraud;  or  the  lease,  or  sale,  of  the  fran- 
chises of  the  corporation  to  another  company,  which  is  void ;  or  the  neglect  to 
make  the  whole  road,  even  without  legislative  sanction,  will  not  exonerate  a 
subscriber  from  paying  calls.  Troy  &  Rutland  Railroad  Co.  v.  Kerr,  17  Barb. 
581.  Jiut  where  a  preliminary  subscription  is  required,  it  must  be  absolute 
and  not  dependent  upon  conditions.  Troy  &  Boston  Railroad  Co.  v.  Tibbits, 
18  Barb.  297.  But  a  condition  that  provides  for  interest,  by  way  of  dividends, 
to  paying  subscribers,  until  the  full  completion  of  the  road,  at  the  expense  of 
subscribers  who  do  not  pay,  or  one  that  imposes  a  limitation  on  the  directors 
in  calling  in  stock,  is  void  as  against  good  policy.     lb. 

In  Wight?'.  Shelby  Railroad  Co.,  16  B.  Monr.  5,  it  was  held,  that  a  sub- 
scription to  stock  was  not  rendered  invalid  by  the  subscriber's  failure  to  pay  a 
small  sum  required  by  the  charter  to  be  paid  on  each  shai'e  when  he  subscribed. 
It  was  said  that  it  was  the  duty  of  subscribers  to  pay  at  the  time  the  stock  was 
subscribed,  but  that  they  should  not  be  allowed  to  "take  advantage  of  their 
own  wrong,  and  release  themselves  from  their  whole  obligation,  by  a  failure  to 
perform  part  of  it."  This  seems  sound  and  consistent  with  the  general  prin- 
ciples of  the  law  of  contract. 

Where  one  subscribed  for  stock  on  the  understanding  that  the  first  ten  per 
cent,  required  by  law  to  be  paid  in  cash  on  subscribing,  should  be  paid  by 
services  in  securing  subscriptions  and  right  of  way,  and  subsequently  presented 
an  account  against  the  company  for  services,  in  which  it  appeared  that  at  the 
date  of  subscription  the  company  owed  him  more  than  the  ten  per  cent  for 
services,  and  the  account  was  settled,  it  was  held  that  the  statute  was  sufficiently 
complied  with.  Beach  v.  Smith,  30  N.  Y.  IIG.  See  also  Vicksburg,  Shreve- 
port,  &  Texas  Railroad  v.  McKean,  12  La.  An.  G38. 

It  was  further  held  to  be  no  valid  defence  to  a  subscription  to  the  stock 
of  a  railway,  that  it  was  delivered  as  an  escrow  to  one  of  the  commissioners 
appointed  to  receive  subscriptions,  as  it  should  have  been  delivered  to  a  third 
person,  to  become  effectual  as  an  escrow. 

It  has  been  held,  that  the  commissioners  may  not  accept  the  check  of  a 
subscriber  in  payment  of  the  amount  required  by  the  charter  to  be  paid  at  the 
time  of  subscription,  but  that  specie,  or  its  equivalent,  must  be  demanded. 
Crocker  v.  Crane,  21  Wend.  211;  s.  c.  2  Am.  Railw.  Cas.  484;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  42.  But  this  is  at  variance  with  the  general  course  of  de- 
cision, unless  in  regard  to  banks,  where  the  charter  expressly  requires  the 
payment  to  be  in  specie.     King  v.  Elliott,  5  Sm.  &  M.  428. 

A  charter  of  a  railway  company  was  made  to  depend  on  the  expenditure 

of  a  certain  sum  in  two  years,  and  completion  of  the  road  in  four  years  from 

the  date  of  the  grant.     The  company  failed  in  the  first  part  of  the  condition, 

but  obtained  subscriptions  to  a  large  amount,  and  the  defendant  was  one  of 

[*189J 


§  55.]  DEFENCES   TO    ACTIONS    FOU   CALLS.  189 

*G.  An  agreement  to  take  stock  and  pay  in  the  stock  of  a  canal 
company,  and  an  offer  of  the  canal  stock,  will  not  make  the  party 
liable  to  pay  money.^* 

*  7.  Infancy  is  a  good  defence,  if  the  person  be  an  infant  at  the 
time  of  suit  brought,  or  if  he  repudiate  the  subscrij)tion  within  a 
reasonable  time  after  coming  of  full  age.^'^  By  the  general  pro- 
visions of  the  English  statute,  all  persons  may  become  share- 
holders, there  being  no  exception,  in  tci'ms,  in  favor  of  infants  ; 
and  if  one  be  registered  while  an  infant,  and  suffer  his  name  to 
ivniain  on  the  registry  after  he  becomes  of  full  age,  he  is  liable 
for  calls,  whether  made  while  he  was  an  infant,  or  afterwards.'^'' 

the  subscribers.  The  company  organized  and  chose  directors,  the  defendant 
being  one  of  them.  The  legislature  revived  and  renewed  the  charter,  and 
extended  the  time  for  the  performance  of  such  condition;  and  subsequently  a 
meeting  of  the  stockholders  was  called  by  the  commissioners,  in  which  the  de- 
fendant took  part.  Additional  directors  were  appointed,  and  at  a  meeting  of  the 
directors,  the  defendant  being  present,  a  call  was  made  on  the  subscriber. 
It  was  held  that  this  was  a  virtual  acceptance  of  the  renewal  of  the  charter, 
and  a  recognition  of  the  former  organization  of  the  company,  amounting  to 
a  sufficient  organization  under  the  new  charter;  and  that  the  defendant  was 
estopped  to  deny  the  regularity  of  these  proceedings.  Danbury  &  Norwalk 
Kailroad  Co.  v.  Wilson,  22  Conn.  4:55. 

Where  the  general  law,  under  which  a  company  is  organized,  requires  a 
payment  of  ten  per  cent  on  each  subscription  before  the  tiling  of  the  articles 
of  association  witli  the  secretary  of  state,  it  is  sufficient,  if  the  cash  payments, 
by  whomsoever  made,  amount  in  the  aggregate  to  ten  per  cent  upon  81,000 
for  each  mile  of  the  road  proposed  to  be  constructed.  Lake  Ontario,  &c.  Rail- 
road Co.  V.  Mason,  10  N.  Y.  451.  And  the  subscription  to  stock  before  the 
incorporation  of  the  company  is  obligatory  on  the  company,  although  the 
subscriber  make  no  cash  jxiyment  whatever,  the  right  of  membership  thereby 
acquired  being  a  sufficient  consideration  for  the  subscription.  lb.  Supra, 
§  51,  note  1. 

"  Swatara  Railroad  Co.  v.  Brune,  0  Gill,  41. 

'"  Northwestern  Railway  Co.  v.  McMichael,  5  Exch.  114;  Birkenhead  Rail- 
way Co.  V.  Pilcher,  5  Exch.  121 ;  s.  c.  G  Railw.  Cas.  G22.  The  party  should  also 
di'iiy  having  derived  any  advantage  from  the  shares,  or  offer  to  restore  tiiem. 
Northwestern  Railway  Co.  r.  McMicliael,  5  Exch.  114;  Leeds  &  Thir.sk  Rail- 
way Co.  V.  Fearnley,  4  Exch.  20;  Dublin  &  Wicklow  Railway  Co.  i-.  Black, 
10  Eng.  L.  &  Eq.  556;  s.  c.  8  Exch.  181.  See  also  Deix)sit  &  General  Life 
Assurance  Co.  v.  Ayscough,  6  Ellis  &  B.  701. 

^•^  Cork  &  Bandon  Railway  Co.  i-.  Cazenove,  10  Q.  B.  'X]:).  But  it  would  seem 
that  infants  are  not  comprehended,  by  the  general  terms  of  the  English  statute. 
Birkenhead,  Lanca.shire,  &  Cheshire  Junction  Railway  Co.  v.  Pilcher,  5  Exch. 
121. 

It  has  been  said  that  an  infant  shareholder,  or  subscriber,  in  a  railway  com- 

[*190,  *101] 


190  ASSESSMENTS   OR   CALLS.  [PART   II. 

It  seems  to  be  *  doubted  by  the  English  courts  whether  the  stat- 
ute of  liiuitatioiis  as  to  shiiple  contracts  applies  to  an  action  for 
calls,  that  being  a  liability  imposed  by  statute,  and  so  to  be  re- 
garded as  a  specialty.^^  (J) 

pany,  is  in  the  same  situation  as  in  regard  to  real  estate,  or  any  other  valuable 
property,  which  he  may  have  purchased  and  received  a  conveyance  of.  If  on 
coming  of  age,  he  disclaim  tlie  contract,  and  restore  the  thing,  with  all  advan- 
tages arising  from  it,  his  liability  is  terminated,  and  he  cannot  be  made  lial)le 
for  calls.  Parke,  B.,  in  Birkenhead  &  Cheshire  Railway  Co.  v.  Pilcher,  0  Railw. 
Cas.  625.  The  infant  is  not  regarded  as  merely  assuming  an  executory  under- 
taking, which  is  void  on  the  face  of  it,  but  as  a  purchaser  of  what  is  presumed 
to  be  valuable  to  him.  "Where,  therefore,  there  is  nothing  but  the  simple  fact 
of  infancy  pleaded  to  an  action  for  calls,  it  is  insufficient.  lb.  It  would  seem 
that  the  plea  should  contain  aveiments,  showing  the  disadvantageous  nature  of 
the  contract  to  the  infant,  his  repudiation  of  the  contract,  and  restitution  of  all 
benefits  derived  under  it,  on  coming  of  age,  or  that  he  is  still  an  infant,  but  will 
be  ready  to  restore  such  benefits  on  coming  of  age.  McMichael  v.  London  & 
Northwestern  Railway  Co.,  5  Exch.  855;  s.  c.  6  Railw.  Cas.  618;  Birkenhead, 
Lancashire,  &  Cheshire  Railway  Co.  r.  Pilcher,  5  Exch.  121 ;  s.  c.  6  Railw.  Cas. 
561,  6G2.  The  mere  plea  of  infancy  is  an  immaterial  plea,  and  issue  being 
joined  thereon,  and  found  for  defendant,  the  plaintiff  is  still  entitled  to  judg- 
ment non  obstante  veredicto.  lb.  The  plea  must  show  that  the  infant  avoids 
the  contract  of  subscription,  on  his  coming  of  age.  Leeds  &  Thirsk  Railway 
Co.  V.  Fearnley,  5  Railw.  Cas.  611;  s.  c  4  Exch.  26.  And  the  appearance  by 
attorney  is  not  equivalent  to  an  averment  that  the  defendant  is  of  full  age.    lb. 

But  a  plea  which  alleges,  that  the  defendant  became  the  holder  of  shares 
by  reason  of  his  having  subscribed  for  them,  and  that  at  the  time  of  his  so 
subscribing,  and  also  at  the  time  of  the  making  of  the  calls,  he  was  an  infant ; 
and  that  while  he  was  an  infant  he  repudiated  the  subscription,  and  gave 
notice  to  the  plaintiffs  that  he  held  the  shares  at  their  disposal ;  it  is  prima 
facie  a  bar;  and  if  the  defendant,  after  he  came  of  full  age,  disaffirmed  his 
repudiation,  or  if  he  became  liable  by  enjoyment  of  the  profits,  those  facts 
should  be  replied.  Xewry  &  Enniskillen  Railway  Co.  v.  Coombe,  3  Exch.  565; 
8.  c.  5  Railw.  Cas.  633. 

Where  shares  were  sold  to  an  infant,  and  duly  transferred  to  him,  on  the 
declaration  of  the  vendor  tliat  he  was  of  full  age,  and  the  father  of  such  infant, 
by  a  deed  reciting  that  he  had  purchased  on  behalf  of  the  son,  and  covenant- 
ing that  he,  on  coming  of  age,  would  execute  tlie  deed  and  pay  all  calls,  and 
that  the  father  would  indemnify  the  company  against  all  costs  by  reason  of 
the  son  being  an  infant,  it  was  held  that  the  father  was  a  contributory. 
Reaveley's  Case,  1  De  G.  &  S.  550.  See  also  Stikenian  v.  Dawson,  4  Railw. 
Cas.  585 ;  s.  c.  1  De  G.  &  S.  90. 

"  Cork&Bandon  Railway  Co.  c.  Goode,  13  C  B.  618;  s.  c.  21  Eng.  L.  &Eq. 
245. 

(i)  The  statute,  at  any  rate,  does     has  been  made  by  the  company,  until 
not  begin  to  run,  where  no  assessment    the  court   has  made  a  call,  or  until 
[*192] 


§  ^5-] 


DEFENCES  TO  ACTIONS  FOR  CALLS. 


101 


8.  Bankruptcy  is  a  good  defence  for  calls  made  after  llic  cer- 
tificate of  bankruptcy  issues,  but  to  lacet  liabilities  incurred 
before.i^ 

9.  One  of  the  commissioners  ap])ointed  with  live  others  at  a 
given  place  to  take  subscriptions  to  a  railway,  has  no  right  in 
doing  so  to  give  any  assurance  as  to  the  line  of  location  that 
would  be  adopted  by  the  company.^^  (c) 

10.  And  where  the  subscription  is  made  uiion  condition  of  the 
road  going  in  a  particular  route,  the  plaintiff  may  show  that  the 
defendant  owned  land  upon  that  route.  And  any  representations 
of  the  agents  taking  the  subscriptions,  as  to  the  ultimate  value  of 
the  stock,  will  be  regarded  as  matters  of  opinion  merely  upon 
which  the  subscriber  had  no  right  to  rely.^*^  (tZ) 

»8  Chappie's  Case,  17  Eiig.  L.  &  Eq.  516;  s.  c.  5  De  G.  &  S.  400. 
**  North  Carolina  Raihoad  Co.  v.  Leach,  4  Jones,  N.  C.  340. 
^  Vawter  t*.  Oiiio  &  Mississippi  Railroad  Co.,  14  bid.  174. 


some  authorized  demand  has  been 
made.  Scovill  v.  Thayer,  105  U.  S. 
143.  And  see  generally  Glenn  v. 
Dorsheimer,  23  Fed.  Rep.  095;  Terry 
V.  Cape  Fear  Bank,  20  Fed.  Rep.  417; 
Glenn  v.  Soule,  22  Fed.  Rep.  417. 

(r)  But  where  the  agent  soliciting 
subscriptions  agrees  with  a  subscriber 


that  his  subscription  shall  be  delivered 
only  on  location  of  the  road  in  a  cer- 
tain way,  delivery  otherwise  will  not 
bind  the  subscriber.  Saginaw,  Tus- 
cola, &  Huron  Railroad  Co.  v.  Chap- 
pell  22  Am.  &  Eng.  Railw.  Cas.  IG. 

(r/)  Union  National  Bank  v.  Hunt, 
7G  Mo.  439. 

[*102] 


192 


ASSESSMENTS   Oil   CALLS. 


[part  n. 


^SECTION  X. 


Fundamental  alteration  of  Charter. 


1.  Such  alteration  releases  subscribers. 

2.  Instance  of  alteration  permitting  pur- 

cliase  of  steamboats. 

3.  7.  RL-ijoritj'  may  bind  company  to  al- 

terations not  fundamental. 

4.  Directors    cannot   use   tlie  funds  for 

purposes   foreign   to   the  organiza- 
tion. 

5.  9.  But  legal  alterations  in  the  charter, 

or  the  location  of  the  road,  will  not 
release  subscribers. 

6.  If  subscriptions  are  made  on  condition 

of  a  particular  location,   however, 
it  must  be  complied  with. 
8.  9,  Consideration  of  subscription    be- 


ing location  of  road,  must  be  sub- 
stantially performed. 

10.  Express    conditions     must    be    per- 

formed. 

11.  How   far    alterations  may  be  made 

without  releasing  subscribers. 

12.  May  be  made  wiiere  such  power  is 

reserved  in  the  charter. 

13.  Personal  representative  liable  to  same 

extent  as  subscriber. 

14.  Money  subscriptions  not  released  by 

subsequent  ones  in  land. 

15.  Corporation    cannot    make    calls   in 

another  state  even    by   legislative 
permission. 


§  56.  1.  There  can  be  no  doubt,  that  subscribers  to  the  stock 
of  a  railway  company  are  released  from  their  obligation  to  pay 
calls  by  a  fundamental  alteration  of  the  charter,  (a)  This  is  so 
undeniable,  and  so  familiar  a  principle,  in  the  general  law  of 
partnership,  as  not  to  require  confirmation  here.  We  shall 
briefly  advert  to  the  points  decided  in  some  of  the  more  promi- 
nent cases,  in  regard  to  incorporated  companies. "  The  general 
doctrine  applicable  to  the  subject  is  very  perspicuously  stated  by 
Woodbury,  J.,  in  an  early  case  in  New  Hampshire.^     "  Every 

1  Union  Locks  &  Canal  Co.  v.  Towne,  1  N.  H.  44.  But  -sNhere  the 
original  charter  or  preliminary  contract  provides  for  modificatious,  the  sub- 


(a)  An  attempt  by  a  state  legisla- 
ture at  such  an  alteration  is,  of  course, 
void  under  that  provision  of  the  fed- 
eral constitution  wliich  forbids  the 
impairment  of  the  obligation  of  con- 
tracts. Nor  have  a  majority  of  the 
stockholders  any  implied  authority  to 
accept  such  an  alteration.  Bat  if  they 
attempt  to  act  under  the  amended 
charter,  and  so  indicate  an  intention 
to  rescind  their  original  contract  with 

[*193] 


one  another  and  the  minority,  the 
minority  ma^^  treat  it  as  rescinded  and 
withdraw,  instead  of  proceeding  in 
equity,  as  clearly  they  may,  for  an 
injunction.  To  this  point,  the  cases 
are  numerous.  Southern  Pennsylva- 
nia Iron  Co.  V.  Stevens,  87  Penn.  St. 
190;  Xugent  v.  Supervisors,  19  Wal. 
241;  Bank  v.  Charlotte,  85  N.  C.  433; 
International  Railroad  Co.  v.  Bre- 
mond,  53  Tex.  96,  and  cases  passim. 


§  56,]  FUNDAMENTAL    ALTKRATION    OF   CHARTER.  VM 

owner  of  sliaros  expects,  and  stipulates  with  tlic  other  owners, 
as  a  corporate  body,  to  pay  them  his  projjortion  of  the  expenses, 
which  a  majority  may  please  to  incur  in  the  prosecution  of  the 
particular  objects  of  the  corporation.  To  make  a  valid  chanu^e 
in  this  sjiecial  contract,  as  in  any  other,  the  consent  of  botii  pur- 
ties  is  indispensable." 

2.  In  an  important  case-  where  it  ajipcared  that  afte  calls  full 
*due,  but  before  suit  brought,  the  company,  being  incorporatt-d 
for  the  purpose  of  building  a  railway,  procured  an  additional 
special  act,  by  which  they  were  authorized  to  purchase  steam- 
boats, it  was  held,  that  a  subscriber,  not  having  assented  to  the 
alteration,  was  absolved  from  his  obligation  to  pay  calls. 

3.  In  a  very  elaborate  opinion  of  Bennett,  Chancellor,-^  upon 
this  subject,  the  following  propositions  are  established  :  *  (1.) 
Tiiat  a  majority  of  a  joint-stock  company  cannot  use  the  joint 
property  except  within  the  legitimate  scope  of  their  charter, 
*  and  if  they  attempt  to  do  so  equity  will  restrain  them  ;  (2.)  the 
shareholders  are  bound  by  such  modifications  of  the  charter  as 
are  not  fundamental,  but  merely  auxiliary  to  the  main  design  ; 
(3.)  if  a  majority  of  a  railway  company  obtain  an  alteration 
of  their  charter  which  is  fundamental,  as,  to  enable  them  to 
build  an  extension  of  their  road,  any  shareholder  who  has  not 
assented  to  the  act  may  restrain  the  company,  by  injunction, 
from  applying  the  funds  of  the  original  organization  to  the 
extension. 

scribers  aie  still  bound  by  all  such  as  come  fairly  within  the  power.  Cork  & 
YouLiflial  Railway  Co.  v.  Patterson,  18  C.  B.  4U;  s.  c  o7  Kng.  L.  &  Eq. 
398;  infra,  §  25'1,  note  G;  Nixon  v.  Brownlow,  30  Law  T.  74;  s.  c.  3  II.  & 
N.  GSfi. 

"  Hartford  &  New  Haven  Railroad  Co.  r.  Croswell,  5  II ill,  383.  In  Winter 
I'.  Muscogee  Railroad  Co.,  11  Ga.  438,  the  charter  was  so  altered  as  to  allow 
the  road  to  stop  short  of  its  original  terminus  and  pass  by  a  dilTerent  route, 
and  subscribers  to  the  stock  were  held  thereby  relea.sed,  unless  tiiey  a,-isentcd 
to  the  alteration.  But  where  one  gave  his  note  for  the  first  instalment,  and 
his  stock  was  forfeited  for  non-payment  of  calls,  he  is  not  relieved  from  pay- 
ment of  his  note  by  a  material  alteration  of  the  charter.  Mitchell  v.  Rome 
Railroa<l  Co.,  17  Ga.  574.  But  any  modification  of  the  charter  which  affi-cts 
merely  the  detail  of  proceedings  in  making  and  enforcing  calls  will  not  release 
subscribers  to  the  stock,  when  such  modification  has  been  accepted  by  the 
corporation.     Illinois  River  Railroad  Co.  v.  Beers,  27  111.  185. 

*  Stevens  v.  Rutland  &  Burlington  Railroad  Co.,  29  Vt.  515.  The  opinion 
at  length  is  a  valuable  commentary  upon  this  important  subject. 

VOL.  1.-13  [*10-1-*196J 


194  ASSESSMENTS   OR   CALLS.  .  [PART   II. 

4.  In  a  case  before  the  Master  of  the  Rolls,*  it  was  held  *  that 
du'cctors  have  no  right  to  enter  into  or  to  pledge  the  funds  of  the 
company  in  support  of  any  project  not  pointed  out  by  their  act, 
although  such  project  may  tend  to  increase  the  trafhc  upon  the 
railway,  and  may  be  assented  to  by  the  majority  of  the  share- 
holders, and  the  object  of  such  project  may  not  be  against  public 
policy.  And  that  acquiescence  by  shareholders  in  a  project  for 
ever  so  long  time,  affords  no  presumption  of  its  legality.  And  in 
a  case  in  this  country  it  is  held,  that  the  subscriber  having  acted 
as  director  of  the  corporation,  and  as  such  having  participated  in 
the  proceedings  to  effect  the  alteration,  will  not  make  him  liable 
for  calls,  upon  his  original  subscription.^ 

5.  But  it  is  no  defence  to  an  action  for  calls,  that  the  directors 
have  altered  the  location  of  the  road,  if  by  the  charter  they  had 
the  discretion  to  do  so.^  And  if  the  charter  contain  a  provision 
that  the  legislature  may  alter  or  amend  the  same,  the  exercise  of 
this  power  will  not  absolve  the  shareholders  from  their  liability  to 
pay  calls.''     And  all  subscriptions  to  stocks,  and  all  contracts  for 

■*  Colman  v.  Eastern  Counties  Railway  Co.,  10  Beav.  1 ;  s.  c.  4  Railw.  Cas. 
513.  See  also  Munt  i'.  Shrewsbury  &  Chester  Railway  Co.,  1-3  Beav.  1;  s.  c. 
3  Eng.  L.  &  Eq.  144: ;  East  Anglian  Railway  Co.  v.  Eastern  Counties  Railway 
Co.,  11  C.  B.  TT.j;  s.  c.  7  Eng.  L.  &  Eq.  505;  j\Iacgregor  v.  Dover  &  Deal 
Railway  Co.,  18  Q.  B.  618;  s.  c.  16  Eng.  L.  &  Eq.  180;  Danbury  &  Norwalk 
Railroad  Co.  v.  Wilson,  22  Conn.  435 ;  Mill-Dam  Co.  v.  Dane,  30  Me.  347  ; 
infra,  §  232;  Winter  v.  ^Muscogee  Railroad  Co.,  11  Ga.  438;  Hamilton  Think 
Road  V.  Rice,  7  Barb.  1.57;  Commonwealth  r.  CuUen,  1  Harris,  133;  s.  o.  3 
Woodb.  &  M,  105.  But  the  House  of  Lords  held  in  Taylor  i'.  Chichester  & 
Midhurst  Railway  Co.,  Law  Rep.  4  H.  L.  628,  where  an  existing  railway  was 
empowered  by  act  of  parliament  to  enter  on  a  new  undertaking  and  to  add 
the  new  undertaking  to  the  old,  and  to  treat  the  capital  intended  to  be  rai.sed 
for  the  now  undertaking  as  capital  added  to  the  old,  that  the  company  v.as 
thereby  authorized  (should  it  be  unable  successfully  to  raise  the  new  cajutal, 
a  matter  not  to  be  assumed)  to  apply  to  the  new  undertaking  funds  previously 
applicable  to  the  old.     Serl  quccre. 

"  Macedon  &  Bristol  Plank  Road  Co.  r.  Lapham,  18  Barb.  312.  But  see 
Greenville  &  Columbia  Railway  Co.  v.  Coleman,  5  Rich.  118. 

6  Colvin  V.  Turnpike  Co.,  2  Cart.  511,  656. 

Xor  is  it  a  defence  to  an  action  for  calls,  that  the  namp  of  the  company, 
or  the  length  and  termini  of  the  road,  have  been  materially  altered.  Delaware 
&  Atlantic  Railroad  Co.  r.  Irick,  3  Zab.  321. 

"  Northern  Railroad  Co.  v.  Miller,  10  Barb.  260;  Pacific  Railroad  Co.  v. 
Renshaw,  18  Mo.  210.  And  where  a  sub.scription  is  made  to  the  capital 
stock  of  a  railwav,  while  an  act  of  the  legislature  exists,  allowing  the  con- 
[*197] 


§  .GG.]  FUNDAMENTAL    ALTERATION    OF    CHARTER.  lUo 

flic  *  purchase  of  stock,  to  be  delivered  at  a  future  day,  must  bn 
inidcrstood  to  be  made  subject  to  the  exercise  of  all  the  leirul 
powers  of  the  directors  and  of  the  legislature,  and  an  illcjral 
exercise  of  power  by  either  will,  it  has  souK'times  been  s;iid,  bind 
no  one,  and  should  exonerate  no  one  from  his  just  obligations.^ 

G.  ]>ut  where  subscriptions  are  made  uj)on  the  express  condi- 
tion that  the  road  shall  go  in  a  particular  place,  the  performance 
of  such  condition  is  commonly  regarded  as  indispensable  to  the 
liability  of  the  subscribers,  the  same  as  in  other  contracts.^  (i) 

solidatioii  of  sucli  company  with  another,  the  fact  that  such  consolidation  is 
suhspquently  made  affords  no  ground  for  avoiding  the  subscription.  Bish  i-. 
Johnson,  21  lud.  299.  And  if,  from  the  articles  of  association  of  the  com- 
pany, it  is  obvious  that  consolidation  with  another  company  was  one  of  the 
leading  purposes  of  tiie  incori^oration,  the  fact  of  such  consolidation,  after  the 
date  of  a  subscription,  will  be  no  defence  against  its  enforcement,  even  when 
the  statute  authorizing  the  consolidation  is  subsequent  to  the  date  of  the  sub- 
scription. Hauna  v.  Cincinnati  &  Fort  "Wayne  Railroad  Co.,  20  Ind.  30.  The 
consolidation  of  two  corporations  does  not  effect  the  dissolution  of  either,  so 
as  to  work  the  abatementof  pending  actions.  Baltimore  &  Susquehanna  Kail- 
roa<l  Co.  V.  Musselman,  2  Grant,  Cas.  348.  But  see  Mc]\Iahan  v.  MorrLson,  10 
Ind.  172,  contra.  For  many  purposes  the  liabilities  of  the  original  companies 
remain,  as  before  the  consolidation.  Central  Railroad  Co.  v.  Buun,  3  Stock. 
?i3G.  It  is  here  decided,  that  where  the  original  company  and  a  new  company 
formed  by  the  mortgagees  after  sale  of  the  road  bear  the  same  name  and 
have  the  same  president,  a  suit  to  enforce  a  claim  contracted  before  the  sal'', 
served  on  the  president,  cannot  go  to  judgment  against  the  new  company,  and 
tliat  a  court  of  equity  will  not  allow  a  general  judgment,  at  law,  to  be  t.nken. 
'i'lie  plaintiff  must  elect  to  take  judgment,  in  terras,  against  the  original 
company.  This  seems  to  be  a  very  judicious  course,  but  one  for  which  court.<» 
of  equity  will  afford  no  precedent.  The  order  should  have  been  made,  most 
obviously,  in  the  court  of  law. 

*  Irvin  V.  Turnpike  Co.,  2  Penn.  40f);  Connecticut  &  Passumpsic  Rivers 
Kailroad  Co.  v.  Bailey,  24  Vt.  479;  Faulkner  v.  Ilebard,  2(5  Vt.  l.')2;  s.  c.  2 
Uedf.  Am.  Railw.  Cas.  G92;  Fry  i'.  Lexington  &  Big  Sandy  Railroad  Co.,  2 
Met.  Ky.  314. 

^  See  cases  under  notes  2,  3,  anpra :  and  also  Railsback  r.  Liberty  Sc 
.Vbingtou  Turnpike  Co.,  2  Ind.  ().")(;.  And  in  Kenosha,  Rockford,  &  Ruck 
Island  Railroad  Co.  v.  Marsh,  17  ^^'is.  15,  it  was  held,  that  where  the  legisla- 
ture had  the  general  power  to  repeal  or  alter  acts  of  incorporation,  and  accord- 
ingly allowed  an  existing  company,  chartered  to  carry  a  railway  over  a  given 
line,  and  whose  subscriptions  had  been  taken  with  that  view,  to  change  its 
route  essentially,  the  subscribers  were  thereby  released  from  their  obligation 
to  pay  calls. 

('')  But  it  would  seem  that  such  a  corporated  in  the  contract  of  subscrip- 
coudiLion,  to  be  of  avail,  must  be  in-     tion.     See  t-upra,  §  5-'),  note  (f). 

[*10S] 


196  ASSESSMENTS    OR    CALLS.  [PART   11. 

But  an  alteration  in  the  lino  of  the  road  which  docs  not  affect 
the  interest  of  the  subscriber,  -svill  not  absolve  him  from  his  sub- 
scription."^ And  when  the  subscription  was  made  upon  condition 
that  the  road  be  located  upon  a  given  line,  and  providing  that 
such  location  should  be  sufficiently  evinced  by  an  order  of  the 
board  of  directors  accepting  such  subscription  upon  the  condition 
named,  it  was  held  sufficient  to  bind  the  subscriber,  that  the  road 
had  been  in  fact  located  and  built  upon  the  line  designated,  and 
that  this  was  known  to  him,  although  there  had  been  no  formal 
action  of  the  board  accepting  the  subscription.^' 

7.  And  an  alteration  in  the  charter,  which  consists  only  of  an 
increase  of  the  corporate  powers,  or  of  a  different  organization  of 
the  corporate  body,  leaving  it  with  lawful  power  to  execute  what 
*  may  be  regarded  as  substantially  the  original  object  of  its  creation, 
will  not  exonerate  subscribers  to  the  stock  of  the  company .^^  go 
too  where  the  general  laws  of  the  state  provide  that  all  acts  of  in- 
corporation may  be  altered,  amended,  or  repealed  by  the  legisla- 
ture, it  is  no  defence  io  a  subscription  for  stock,  that  subsequently 
the  legislature  increased  the  liability  of  the  stockholders.^^ 

8.  And  notwithstanding  much  apparent  conflict  in  the  cases 
upon  this  subject,  it  will  be  found  to  be  the  general  result  of  the 
best  considered  cases,  that  the  alteration,  either  in  the  charter  of 
the  company  or  the  line  of  the  road,  to  exonerate  the  subscriber 

"  Banet  i'.  Alton  &  Sangamon  Railroad  Co.,  13  111.  504;  Danbury  &  Xor- 
walk  Railroad  Co.  v.  Wilson,  22  Conn.  435. 

^1  Moore  v.  New  Albany  &  Salem  Railroad  Co.,  15  Ind.  78;  Warner  v.  Cal- 
ender, 20  Ohio  St.  190. 

^2  Pacific  Railroad  Co.  v.  Hughes,  22  ]Mo  291 ;  Peoria  &  Oqviawka  Railroad  Co. 
V.  Elting,  17  III.  429.  In  Everhart  v.  West  Chester  &  Philadelphia  Railroad 
Co.,  28  Penn.  St.  389,  the  subscribers  for  stock  were  held  not  released  by  such 
a  change  in  the  charter  of  the  company  as  empowered  them  to  issue  preferred 
stock,  to  enable  them  to  raise  the  means  of  making  and  equipping  the  road  in 
the  manner  originally  contemplated.  It  was  considered  that  such  an  amend- 
ment of  the  charter  was  merely  ancillary  to  the  main  design,  and  might  be 
accepted  by  a  majority  of  the  stockholders  and  thus  become  binding  on  all; 
that  it  is  implied  in  eveiy  subscription  that  the  company  may  resort  to  the 
ordinary  and  legal  means  for  accomplishing  the  object  proposed  by  the  charter. 
It  is  here  said  that  an  alteration  of  the  charter  which  superadds  an  entirely 
new  enterprise,  will  release  subscriptions  to  the  stock.  See  also  Fry  v.  Lex- 
ington &  Big  Sandy  Railroad  Co.,  2  Ky.  314. 

18  South  Bay  Meadow  Dam  Co.  v.  Gray,  30  Me.  547;   Buffalo  &  New  York 
City  Railroad  Co.  v.  Dudley,  14  N.  Y.  336.     But  see  supra,  note  9. 
[*199] 


§  5(5.]  FUNDAMENTAL   ALTERATION    OF   CHARTER.  197 

fur  stock,  must  be  one  which  removes  the  ])rcvuilinf^  motive  for 
(he  subscription,  or  else  materially  and  fundamentally  alters  the 
responsibilities  and  duties  of  the  company,  and  in  a  manner  not 
provided  for,  or  contemplated,  either  in  the  cliarter  itself  or  the 
general  laws  of  the  state. '^  (r) 

*  U.  Where  a  town  or  city  stipulate  with  a  railway  company,  for 
adequate  consideration,  to  terminate  their  route  at  a  j)oint  bene- 
li'-ial  to  such  town  or  city,  this  will  not  preclude  the  conipanv 
from  forming  connections  with  other  routes,  by  land  or  water,  at 
the  same  point. '^ 

10.  And  where  the  plaintiff  made  it  a  condition  of  his  sub- 
scription to  the  capital  stock  of  a  railway,  that  it  should  pass 
through  some  portion  of  the  counties  of  Monroe  and  Ontario,  and 
the  road  was  so  located  as  not  to  touch  either  of  those  counties, 
it  was  held,  that  he  was  released  from  his  subscription.^^ 

^*  But  in  tlie  Greenville  &  Columbia  Eailioad  Co.  r.  Coloman,  5  Rich.  118, 
where  the  charter  gave  the  stockholders  the  right  to  designate  tlie  route  they 
jireferred,  and  if  any  stockholder  was  dissatisfied  with  the  route  selected,  the 
right  to  withdraw  his  subscription,  "  provided,  at  the  time  of  subscribing,  he 
designated  "  the  route  he  desired;  and  on6  subscribed  without  designating  the 
mute  he  preferred,  under  an  assurance  from  one  who  was  soliciting  subscrip- 
tions, that  he  might  pay  a  small  percentage,  and  be  free  from  liability  as  to 
the  residue,  it  was  held,  that  he  was  liable  as  a  stockholder,  without  the  right 
to  withdraw.  But  some  of  the  American  cases  do  not  seem  to  recognize  any 
alteration  in  the  route  of  the  road,  even  one  wliich  renders  it  practically  a 
different  enterprise,  as  a  defence  to  subscriptions  for  stock.  Central  Plank 
Uoad  Co.  V.  Clemens,  IG  Mo.  -ioO.  But  in  Champion  v.  Memphis  &  Charleston 
Railroad  Co.,  35  Miss.  602,  it  was  decided,  that  when  the  route  on  which  a 
railroad  is  to  be  located  is  prescribed  by  its  charter,  a  subsequent  material 
deviation  from  the  route  therein  prescribed  will  release  the  stockholders  who 
had  previously  subscribed,  and  who  did  not  consent  to  the  deviation. 

It  is  not  every  deviation  in  the  location  of  a  railroad  from  the  route  pre- 
scribed in  the  charter  which  will  release  non-as.senting  stockhoKlers.  and  it  is 
impracticable  to  lay  down  any  general  rule  to  serve  as  a  guide  in  determining 
the  question  of  the  materiality  of  the  deviation.  Each  case  must  be  deter- 
mined by  its  own  particular  circumstances;  and  hence,  where  a  stockholder 
resists  the  collection  of  his  subscription  for  stock,  on  the  ground  of  a  deviation 
from  the  route  prescribeil  by  the  charter,  he  ought  to  set  out  in  his  plea  such 
deviation  clearly  aiid  distinctlj',  so  that  its  materiality  can  be  determined. 

"  Baltimore  &  Ohio  Railroad  Co.  v.  Wheeling,  13  (Jrat.  40. 

"  Buffalo,  Corning,  &  New  York  Railroad  Co.  r.  Pottle,  23  Barb.  21.  "Whore 
one  not  a  stockholder  executed  a  promissory  note  to  a  company,  promising 


(c)   See  supra,  pi.  1.  note  (a).  * 

[*200] 


198  ASSESSMENTS   OR   CALLS.  [PART   IL 

*  11.  Where  the  articles  of  incorporation  of  a  railway  company 
restrict  calls  upon  subscriptions  to  twenty  per  cent  in  one  year, 
and  ten  per  cent  at  one  time,  and  also  provide  that  said  articles 
may  at  any  time  be  changed  by  the  unanimous  consent  of  the 
board  of  directors,  it  is  competent  for  the  board  to  so  change 
the  mode  of  making  calls  as  to  require  them  to  be  made  not 
exceeding  five  per  cent  a  month,  and  such  change  in  the  articles 

to  pay,  in  consideration  of  the  location  of  the  depot  on  a  certain  block,  and  to 
pay  when  the  company  should  commence  the  construction  of  the  depot,  and 
by  subsequent  act  of  the  legislature  the  line  of  the  road  was  di\aded  at  the 
point  where  the  depot  was  to  be  erected,  and  a  portion  given  to  another  com- 
pany, which  built  its  depot  in  another  portion  of  the  town,  the  former  com- 
pany only  constructing  a  freight  depot  on  the  block,  it  was  held  that  by  the 
alteration  of  charter  and  the  acceptance  thereof,  the  company  became  sub- 
stantially a  different  corporation,  and  unable  to  perform  the  condition  on 
which  the  note  was  to  become  payable,  and  that  the  circumstance,  that  the 
depot  located  on  that  block  was  of  some  advantage  to  the  party,  was  of  no 
importance. 

But  an  amalgamation  of  two  companies,  subsequent  to  the  date  of  subscrip- 
tion to  the  stock  of  one  of  them,  but  authorized  by  a  prior  act  of  the  legislature, 
will  not  release  the  subscription.  And  it  is  of  no  importance,  that  the  con- 
solidation took  place  without  the  knowledge  of  the  subscriber.  Sparrow  v. 
Evansville  &  Crawfordsville  Railroad  Co.,  7  Ind.  369. 

A  subscription  to  stock  of  an  amalgamated  company  is  a  sufficient  consent 
to  the  amalgamation.  And  such  consent  by  the  stockholders  seems  to  be  re- 
garded as  requisite  to  the  power  of  the  legislature  to  amalgamate  existing 
companies.  Fisher  v.  Evansville  &  Crawfordsville  Railroad  Co.,  7  Ind.  407. 
"Where  one  of  the  stockholders  of  a  railway  company  agreed  with  the  company 
to  subscribe  and  take  a  given  number  of  shares  in  the  capital  stock,  if  the 
company  would  adopt  a  particular  route,  there  being  two  under  consideration, 
and  the  company  in  consequence  adopted  that  route,  it  was  held  that  the  party 
was  bound  by  his  contract  to  take  and  pay  for  the  number  of  shares  he  had 
thus  agreed  to  subscribe.  Spartanburgh  &  Union  Railroad  Co.  v.  De  Graffen- 
reid,  12  Rich.  075.  But  where  in  such  a  case,  by  a  subsequent  amendment  of 
the  charter,  the  route  in  consideration  of  which  the  subscription  was  made 
was  abandoned,  and  another  adopted,  the  subscriptions  were  held  to  be  thereby 
avoided.  Hester  v.  Memphis  &  Charleston  Railroad  Co.,  32  Mi.ss.  378.  But 
one  who  makes  an  absolute  subscription  cannot  avoid  it  by  proving  a  parol 
condition  not  complied  with,  unless  he  shows  that  fraud  also  existed  in  the 
contract.  North  Carolina  Railroad  Co.  v.  Leach,  4  Jone.s,  N.  C.  340.  Tliis 
case  is  referred  to  supra,  §  .").5,  pi.  9.  and  one  important  point  of  the  decision 
is  there  given.  It  was  also  there  held  that  if  the  party  have  a  remedy  by  man- 
damus or  injunction,  where  the  directors  locate  the  road  differently  from  the 
requirements  of  the  charter,  and  omit  to  resort  to  it  at  once,  he  is  bound  by 
such  acquiescence. 
[*201] 


§  5G.]  FUNDAMENTAL    ALTKRATION    Or    CHARTER.  1 'J!) 

as  to  Iho  mode  of  luukinj^  calls  will  he  biiuliiii^^  upon  prcviijiis 
subscriptions.'" 

12.  And  in  a  somewhat  recent  case  ^^  it  was  held,  wliere  tlie 
Icf^islature  had  reserved,  in  the  charter  of  a  coi'poration,  the 
power  to  modify  or  repeal  the  same,  that  members  of  the  coi-poi-a- 
tion  hold  their  shares  subject  to  sucli  liability  as  may  attach  in 
con8e(|Ucnce  *  of  the  extension  or  renewal  of  the  charter,  althouiih 
obtained  witliout  their  consent. 

13.  And  it  was  also  here  considered,  that  the  estate  of  an  in- 
testate shareholder  succeeded  to  the  personal  responsibility  (jf  the 
deceased  in  the  corporation,  and  this  will  render  the  administra- 
tor liable  for  the  debts  of  the  corporation  contracted  after  the 
decease  of  the  intestate,  to  the  same  extent  the  deceased  would 
have  been  if  still  livin*^' ;  and  that  the  stockholder  or  his  jiersonal 
representative  can  only  relieve  himself  from  responsibility  by  a 
bona  fide  and  absolute  sale  of  the  stock. 

14.  A  railway  company  do  not  release  money-subscri])tions  l)y 
accepting'  large  land  subscriptions  at  a  subsequent  date.'"-^ 

15.  And  a  railway  corporation,  chartered  in  one  state  to  con- 
struct and  operate  a  road  within  that  state,  cannot  emigrate  intt) 
another  state,  even  where  that  state  had  given  legislative  jiermis- 
sion  to  act  therein.  And  after  having  transferred  its  business 
oHice  into  another  state,  where  it  performed  all  its  corj)oratc  func- 
tions, it  is  not  comijctent  for  it  to  make  valid  calls  in  such  other 
state  upon  subscriptions  taken  in  the  place  of  its  creation.'-^ 

"  Burlington  &  Missouri  River  Kailroail  Co.  r.  White,  5  Clarke,  109. 

"  Bailey  v.  Hollister,  20  N.  Y.  112.  But  it  is  here  suggested,  that  after  the 
charter  of  a  corporation  has  expired,  there  is  no  power  to  revive  it,  by  any 
agency  less  than  the  consent  of  all  the  corporators. 

"  Ilornaday  c.  Indiana  &  Illinois  Central  Railway  Co.,  9  Ind.  2G3. 

^  Aspinwall  v.  Ohio  &  Mississippi  Railroad  Co.,  20  Ind.  492. 

[*202] 


200 


ASSESSMENTS   OR   CALLS. 


[part  II. 


SECTION    XL 


Subscriptions  before  date  of  Charter. 


Subscriptions  before  date  of  cliarter 
good. 

Subscriptions  on  condition  not  per- 
formed. Effect  of  subsequent  per- 
formance. 

Subscription  by  a  stranger  to  induce 
company  to  build  station. 


4.  Subscription    on    condition,  an    offer 

merely. 

5.  Conditional  subscription    takes   effect 

on  performance  of  the  condition. 

6.  How   far   commissioners    may   annex 

conditions  to  subscription. 

7.  Such  conditions  void,  if  fraudulent  as 

to  company. 


§  57.  1.  It  has  been  lield  that  one  who  subscribes  before  the 
act  of  incorporation  is  obtained,  and,  by  parity  of  reason,  before 
the  organization  of  the  company,  although  after  the  act  of  incor- 
poration, is  holden  to  the  corporation  to  pay  the  amount  of  his 
subscription.  And  a  suit  is  sustainable,  in  their  name,  upon  any 
securities  given  in  the  name  of  the  association,  or  of  the  commis- 
sioners for  organizing  the  company,  and  equally  upon  the  sub- 
scription *  itself  in  the  name  of  tlie  corporation.^  (a)     And  it  is 

1  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  93;  Selma  &  Tennessee  Railroad  Co. 
V.  Tipton,  5  Ala.  786;  Vermont  Central  Railroad  Co.  v.  Clayes,  21  Vt.  30; 
Delaware  &  Atlantic  Railroad  Co.  v.  Irick,  3  Zab.  321.  In  the  last  case,  the 
very  point  ruled,  is,  whether  the  company  was  proper  plaintiff,  in  an  action 
to  enforce  calls  against  one  who  signed  the  commissioners'  paper  for  shares 
before  the  organization,  and  it  was  held  that  the  commissioners  were  to  be 
regarded  as  agents  of  the  company.  See  also  Troy  &  Boston  Railroad  Co.  v. 
Tibbits,  IS  Barb.  2.']7;  Stanton  v.  Wilson,  2  Hill,  153;  Troy  &  Boston  Railroad 
Co.  V.  Warren,  18  Barb.  310;  Hamilton  Plank  Road  Co.  v.  Rice,  7  Barb.  157; 
Stewart  v.  Hamilton  College,  2  Denio,  417;  Danbury  &  Norwalk  Railroad 
Co.  V.  Wilson,  22  Conn.  435.  So  also  a  subscription  to  the  capital  stock  of  a 
railway,  made  on  the  solicitation  of  one  who  was  not  a  comniis.sioner,  but  who 
felt  an  interest  in  the  road,  and  volunteered  to  take  up  subscriptions  to  its 
stock,  was  held  valid  in  one  case.  Northeastern  Railroad  Co.  v.  Rodrigues,  10 
Rich.  278.  An  agreement  to  take  a  certain  number  of  shares  of  the  stock  of 
a  railway  company,  made  by  signing  a  paper  with  others,  in  advance  of  obtain- 
ing the  act,  is  equivalent  to  a  subscription  for  shares  after  the  act  is  obtained. 
Burke  v.  Lechmere,  Law  Rep.  6  Q.  B.  297. 


(r/)  And  see  Marseilles  Land  & 
Water  Power  Co.  v.  Aldrich,  86  111. 
504;  Batty  v.  Adams  County,  16 
Neb.  44;  Lake  Ontario  Shore  Rail- 
road Co.  V.  Curtiss,  80  N.  Y.  218  ; 
Athol  Music  Hall  Co.  v.  Carey,  116 
[*203] 


Mass.  473 ;  Ashuelot  Boot  &  Shoe  Co.  v. 
Hoit,  56  N.  II.  548;  McCIure  v.  Peo- 
ple's Freight  Railway  Co.,  90  Penn.  St. 
269.  It  seems  upon  these  and  other 
cases  that  there  is  a  distinction  be- 
tween an  agreement  to  subscribe  for 


§  57.]  SUBSCRIPTIONS    BEFORE   CHARTER.  201 

not  competent  for  one,  who  is  a  subscriber  to  such  an  cntej'j>rise, 
to  withdraw  his  name  while  the  act  of  incorporation  is  goin^ 
tlirougli  the  legishiturc.^ 

2.  IJut  an  informal  subscription,  which  is  never  carried  throu'rh 
the  steps  necessary  to  constitute  the  subscribers  members  of  the 
company,  has  been  held  inoperative,  as  no  compliance  with  tlie 
act.''*  And  a  subscription,  npon  condition  that  the  road  is  built 
through  certain  specified  localities,  tlie  company  at  the  time  not 
assuming  to  build  the  road  through  those  places,  will  not,  it  has 
Ix'ou  held,  make  the  subscriber  lialjlc  to  an  action  for  calls,  even 
if  the  condition  be  ultimately  i)erfurnied  by  the  company."*  (^l>)     But 

2  Kidwelly  Canal  Co.  v.  Raby,  2  Price,  93;  Brownlee  v.  Ohio,  Indiana  & 
Illinois  Railroad  Co.,  18  Ind.  GS. 

8  Troy  &  Boston  Railroad  Co.  v.  Tibbits,  18  Barb.  298. 

*  Macedon  &  Bri-stol  Plank  Road  v.  Lapliani,  18  Barb.  313.  In  tins  case  it 
seems  to  have  been  decided  that  such  a  subscrijition  is  not  good,  as  a  subscrip- 
tion for  stock,  not  on  the  ground  mainly  that  it  was  conditional  and  so  against 
jtublic  policy,  or  from  want  of  mutuality,  but  on  the  ground  of  an  extension  of 
the  road  and  an  increase  of  the  capital  stock.  See  also  Utica  &  Schenectady 
Railroad  Co.  r.  Brinckerhoif,  21  AVend.  139,  where  such  a  decision  is  made.  But 
the  current  of  anthorit)-,  both  English  and  American,  is  in  a  counter  direction. 
It  is  impo.ssible  fairly  to  consider  such  a  subscription,  where  the  road  is  located 
ill  a  given  line,  in  faith,  and  in  fulfilment  of  the  condition,  as  a  mere  offer, 
unaccepted.  It  is  a  proposal  accepted,  and  as  much  binding  as  any  other 
possible  consideration.  But  if  it  were  to  be  regarded  as  a  mere  open  ofifer, 
when  accepted  according  to  its  terms,  it  is  binding  as  a  contract  and  no  longer 
revocable;  and  the  only  case  of  much  weight,  which  ever  attempted  to  main- 
tain the  opposite  view,  that  of  Cooke  v.  Oxley,  3  T.  R.  G5-i,  has  been  regarded 
as  overruled  on  that  point  for  many  years.  See  L'Amoreux  r.  Gould,  3  Seld. 
349;  Connecticut  &  Pa.ssumpsic  Rivers  Railroad  Co.  v.  Bailey,  24  Vt.  478.  Mr. 
Benjamin,  in  his  book  on  Sales,  pp.  47-50,  attempts  to  uphold  the  case  of 
Cooke  r.  Oxley,  on  the  ground  that  it  has  been  misunderstood  by  the  Ameri- 
can courts  and  text-writers.  That  may  be  so.  But  on  what  sensible  gntund 
can  that  case  be  upheld  to  the  full  extent?  If  a  continuing  offer  is  made  with- 
out consideration,  no  doubt  it  may  be  withdrawn  at  any  time  before  it  is 
accepted;  and  after  the  withdrawal  is  made  known  to  the  other  party  he  is 
no  longer  at  liberty  to  act  upon  it.     But  until  that  event,  or  the  expiration 

shares,  which  must  be  said  to  contem-  (h)  But  see  Mansfield,  Coldwater, 

l>late  an  additional  act  before  parties  &   Lake    Michigan    Railroad    Co.   r. 

are  to  become  shareholders,  and  an  Stout,  20  Ohio  St.  211 ;  Cedar  Rapids 

unconditional    agreement    to    become  &    St.    Paul    Railway    Co.    r.    Sj^af- 

shareholders  when  the  corporation  is  ford,  41  Iowa,  292.     And  see  inj'ra, 

formed,  which  is  an  offer  which  when  pi.  4. 
accepted  by  the  corporation  is  binding. 

[«203] 


202  ASSESSMENTS   OR   CALLS.  [PART   IL 

*  one  might  peril aps  raise  some  question,  whether,  upon  general 
principles,  such  a  subscription  ought  not   to  be  binding,  as  a 

*  standing  offer  accepted  and  acted  upon  by  the  company,  which 
is  sufficient  consideration  for  the  })romise.^ 

3.  And  even  where  a  mere  stranger  subscribes  to  a  railway 
company,  with  others,  in  order  to  induce  the  company  to  build  a 
station-house  and  improve  the  roads  to  it,  and  to  aid  the  company 
in  such  work,  and  the  company  perform  the  condition  on  their 
part,  the  subscription  is  upon  sufficient  consideration,  and  may  be 
enforced  against  the  subscribers,^ 

4.  And  a  subscription  to  the  stock  of  a  railway  company,  con- 
ditioned to  be  void  unless  the  company  would  accept  the  convey- 
ance of  a  specific  tract  of  land  at  a  given  price,  is  a  mere  offer  to 
invest  the  land  in  shares,  and  until  accepted  by  the  company  is  of 
no  validity.'  (c?) 

5.  A  subscription  upon  the  performance  of  a  condition  becomes 
absolute  upon  such  performance.  The  subscription  takes  effect 
from  that  time ;  the  first  instalment  required  to  be  paid  at  the 
time  of  subscription  then  becomes  due  and  payable,  and  the  sub- 
scriber liable  to  assessment  for  the  remainder.^  (cZ) 

6.  There  is  another  case^  wherein   propositions  are  declared 

of  the  offer  by  lapse  of  time,  he  is  at  liberty  to  accept  it;  and  if  he  do  so,  a 
valid  contract  is  thereby  ci'eated  between  the  parties,  on  the  basis  of  the  offer. 
This  view  is  placed  on  very  satisfactory  grounds  by  Mr.  Justice  Nelsox,  in 
Taylor  v.  Merchants'  Fire  Insurance  Co.,  9  How.  390.  There  is,  unquestion- 
ably, this  difference  between  a  standing  offer  made  upon  consideration  and 
one  made  gratuitously;  that  in  the  former  case  it  cannot  be  withdrawn,  and 
in  the  latter  it  may  be.  But  even  in  the  case  of  a  gratuitous  offer,  the  with- 
drawal does  not  become  effective  until  notice  of  such  withdrawal  reaches  the 
adverse  party.  If  the  latter,  before  such  notice,  do  that,  which  by  the  terms 
of  the  offer  amounts  to  unconditional  acceptance,  the  contract  is  complete,  and 
both  parties  irrevocably  bound  by  it. 

The  subject  is  very  justly  illustrated  by  Mr.  Justice  Fletcuek,  in  the  case 
of  Boston  &  Maine  Railroad  Co.  v.  Bartlett,  3  Cush.  224. 

^  See  this  subject  more  fully  discussed  in  §§  51,  55,  supra.  See,  also,  John- 
son V.  Wabash  &  Mount  Vernon  Plank  Road  Co.,  10  lud.  389. 

^  Kennedy  v.  Colton,  28  Barb.  59. 

'  Junction  Railroad  Co.  v.  Reeve,  15  Ind.  236. 

^  Ashtabula  &  New  Lisbon  Railroad  Co.  v.  Smith,  15  Ohio  St.  328. 

®  Bedford  Railroad  Co.  v.  Bowser,  48  Peun.  St.  29.  See,  also,  Lowe  v. 
E.  &  K.  Railroad  Co.,  1  Head,  6-59. 

(c)  See  supra,  §  48,  note  (/>).  ((/)  See  supra,  §  48,  note  (b). 

[*204,  *205] 


§58.] 


SUBSCRIPTION    UPON    SPKCIAL   TKRMS. 


203 


whicli  seem  at  variance  with  the  general  rule  that  Bubscriptions 
dependent  upon  conditions  are  not  effectual  until  such  conditions 
arc  complied  with.  It  was  here  held,  that  commissioners  ai>- 
pointed  to  receive  subscriptions  to  the  stock  of  a  projected  rail- 
way company  are  so  far  limited  in  their  authority  that  they  have 
no  power  to  attach  conditions  to  subscriptions  received  by  them, 
and  where  they  do  so  the  act  is  not  binding  upon  the  c(jmpany, 
and  that  after  the  organization  of  the  corporation,  the  directors 
have  no  power  to  assume  the  subscriptions  u])on  the  conditions 
named,  i.  e.  that  the  comjjany  assume  the  payment  of  the  sub- 
scrij)tions  and  release  the  subscribers. 

7.  But  we  apprehend  that  if  this  decision  is  maintainable  upon 
*  recognized  rules  of  law,  it  must  be  because  the  wliolc  scheme 
of  such  a  subscription  evidences  a  covert  fraud  upon  the  contem- 
plated corporation,  and  that  the  act  of  the  directors  is  but  one 
step  in  fulfilment  of  the  scheme,  as  the  case  shows  the  action  of 
the  first  board  of  directors  was  immediately  repealed  upon  the 
coming  in  of  a  new  board,  and  the  court  held  it  competent  to 
show  what  took  place  at  the  time  of  passing  the  first  resolutions, 
with  a  view  to  establish  the  fraudulent  purpose. 


SECTION   XII. 


Subscription  iqjon  Special  Terms. 


1.  Subscriptions  not  pavalile  in  money. 

2.  Subscriptions  at  a  discount,  not  bind- 

ing. 
n.  2.  Contracts  to  release  subscriptions 
not  biniling. 

3.  4.  Subscriptions   before  and  after  or- 

ganization.    President   may  accept 
conditional  subscriptions. 
5.  Subscription  payable  in  labor  not  en- 
forced in  money  until  opportunity 
given  to  perform. 


6.  True   rule,   subscription  enforceable 

only  according  to  terms,  but  direc- 
tors responsible  to  creditors  for 
money. 

7,  8,  'J.  Subscriptions  to  be  paid  in  bonds 

at  par  value. 

10.  Qitiire,    wlietber   a    corporation    can 

stipulate  to  pay  interest  on  stocks. 

11.  Such   a   certificate   of    stock    is    not 

thereby  rendered  inoperative  for 
legitimate  purposes. 


§  58.  1.  It  is  well  settled,  that  a  railway,  or  other  joint-stock 
company,  cannot  receive  subscrij)tions  to  their  stock.  ])ayablc  at 
less  sums,  or  in  other  commodities,  than  that  which  is  dcmnmlod 

[-0.;] 


204  ASSESSMENTS    OE    CALLS.  [PART   IL 

of  other  subscribers.  Hence  subscriptions,  jiayablc  in  storc-i)ay,  or 
otherwise  than  in  money,  will  be  held  a  fraud  upon  the  other  sub- 
scribers, and  payment  enforced  in  money.^  (a) 

2.  So  too  in  a  case  where  subscriptions  to  stock  of  such  a  com- 
pany *  are,  by  the  agents  of  the  company,  agreed  to  be  received 
at  a  discount,  below  the  par  value  of  the  shares,  it  will  be  re- 
garded as  a  fraud  upon  the  other  shareholders,  and  not  binding 
upon  the  company .^  (J) 

1  Henry  v.  Vermillion  &  Ashland  Railroad  Co.,  17  Ohio,  187.  But  in  Phila- 
delphia &  West  Chester  llailroad  Co.  v.  Hickman,  28  Penn.  St.  318,  it  is  said 
the  company  may  compromise  subscriptions  for  stock,  which  are  doubtful, 
on  receiving  part  payment,  or  may  receive  payment  in  labor  or  materials,  or 
in  damages  which  the  company  is  liable  to  pay,  or  in  any  other  liability  of  the 
corporation.  The  certificates  of  stock  in  this  case  were  issued  to  the  contrac- 
tors, in  part  payment  for  work  done  by  them  on  the  road;  to  others,  in  part 
payment  for  a  locomotive,  for  sleepers,  for  land-damages,  and  for  cars.  We  do 
not  understand  how  there  can  be  any  valid  objection  to  receiving  payment  for 
subscriptions  to  the  capital  stock  in  this  mode,  if  the  shares,  so  disposed  of, 
are  reckoned  at  their  fair  cash  value,  at  the  time  the  contract  is  entered  into. 
Contracts  of  this  kind  have  been  very  generally  recognized  by  the  courts  as 
valid. 

2  Mann  v.  Cooke,  20  Conn.  178.  In  this  case  the  defendant  subscribed  for 
forty  shares  on  condition  that  all  future  calls  should  be  paid,  as  required,  or 
the  shares  should  become  the  property  of  the  company.  He  thereupon  re- 
ceived certificates  of  ownership  of  the  forty  shares,  the  special  terms  of  his 
subscription  not  being  known  to  the  other  subscribers.  Some  time  afterwards, 
the  company  being  largely  indebted,  and  insolvent,  and  the  greater  part  of 
the  instalments  on  its  stock  being  unpaid,  the  president  made  an  arrangement 
with  the  defendant  that  he  should  immediately  pay  the  instalments  on  twenty 
shares  of  his  stock,  in  full,  and  be  discharged  from  all  liability  on  the  other 
twenty  shares.  The  defendant  complied  with  these  terms,  and  the  money 
paid  went  for  the  benefit  of  the  company.  The  plaintiff  was  appointed  re- 
ceiver, and  brought  a  bill  for  the  balance  due  on  the  other  twenty  shares, 

(a)  In  Richfield  &  New  York  Rail-  ing  its  value  are  said  to  be  a  fraud  on 

road  Co.  v.  Brush,  43  Conn.  86,  how-  subscribers   whose    subscriptions    are 

ever,  it  was  held  that  a  subscription  unconditional.    But  see  contra,  Hinton 

with  a  supplemental  agreement  that  it  v.  Morris  Covmty  Co-operative  Society, 

should  be  payable  in  work  and  mate-  21  Kan.  GGo,  where  the  directors  agreed 

rials  was  valid,  it  being  made  in  good  with   a  purcliaser  of   shares   that  he 

faith.  should  have  the  privilege  of  withdraw- 

(J>)   As  to  subscriptions  upon  condi-  ing  his  money  at  any  time  on  thirty 

tions   generally,  see  Burke  v.   Smith,  days'  notice    and    surrender    of    his 

16  Wal.  3f)0,  where  conditions  hinder-  shares,  and  the   agreement   was   up- 

ing  the  collection  of  capital  or  lessen-  held. 

[*207] 


§  58.]  SUBSCRIPTION    UPON    SPECIAL   TERMS.  205 

*  3.  In  a  case  in  Pennsylvania,-"^  it  is  said  tliat  snbscriptions 
made  to  the  capital  stock  of  a  corporation  before  its  organiza- 
tion, must  always  be  payable  in  money  only.  But  after  the  or- 
ganization, the  company  may  stipulate  with  the  subscriber  f«)r 
})ayraent  in  any  other  mode,  and  can  only  enforce  the  contract 
according  to  its  terms ;  and  the  act  of  the  president  of  the  com- 
pany in  accepting  conditional  subscriptions  is  binding  upon  the 
company. 

4.  It  is  also  held  in  the  same  case,^  that  the  fact  the  sul> 
scribcr  makes  part  payment  in  money  before  call,  will  not  estop 
him  from  setting  up  the  special  contract  in  defence  of  an  after 
call. 

and  it  was  held,  that  the  subscription  was  in  legal  effect  the  same  as  an  ordi- 
nary subscription  without  condition;  that  the  arrangement  made  with  the 
president  was  void,  as  a  fraud  upon  stockholders  and  creditors;  and  that  the 
company,  being  created  for  public  purposes,  could  not  receive  subscriptions 
under  a  private  arrangement  at  less  than  the  par  value  of  the  stock,  as  this 
would  deprive  the  company  of  so  much  of  its  available  means,  and  thus 
operate  as  a  fraud  upon  all  parties  interested. 

But  where  one  paid  for  stock,  under  a  secret  agreement  with  the  commis- 
sioner of  contracts  that  he  might  receive  land  of  the  company  at  a  future  day, 
and  pay  in  the  stock  certificate,  and  the  company  declined  to  ratify  tlie  con- 
tract, it  was  held  that  the  subscriber  was  released  from  his  portion  of  the  con- 
tract, and  might  recover  the  money  he  paid  for  the  stock  of  the  company. 
Weeden  v.  Lake  P2rie  &  Mad  River  Railroad  Co.,  11  Ohio,  503.  But  in  the 
case  of  the  Cincinnati,  Indiana,  &  Chicago  Railroad  Co.  v.  Clarkson,  7  Ind.  595, 
it  seems  to  be  considered,  that  the  company  is  bound  by  a  contract  to  compen- 
sate a  solicitor  of  subscriptions  payable  in  land,  but  no  question  is  made  in 
regard  to  the  validity  of  the  subscriptions.  The  solicitors  were  ordered  by 
the  directors  to  accept  such  subscriptions,  and  were  to  have  two  per  cent  on 
all  which  were  accepted  by  the  company,  and  the  contract  was  held  binding 
on  the  company.  An  agreement  by  a  railway  company,  that  a  subscriber  for 
stock  may  pay  the  full  amount,  or  any  part  of  his  subscription,  and  receive 
"interest  thereon  until  the  road  goes  into  operation,"  does  not  oblige  the 
company  to  pay  interest  before  the  road  goes  into  operation.  Waterman  r. 
Trey  &  Greenfield  Railroad  Co.,  8  Gray,  433.  See,  also.  Buffalo  &  New  York 
City  Railroad  Co.  v.  Dudley,  14  N.  Y.  33G;  supra,  §  51,  pi.  4.  An  agreement 
to  pay  interest  on  stock  "  as  soon  as  paid,"  means  fully  paid.  Miller  v.  Pitts- 
burg &  Connellsville  Railroad  Co.,  40  Penn.  St.  237. 

«  Pittsburg  &  Connellsville  Railroad  i-.  Stewart,  41  Penn.  St.  54.  The 
question  of  the  presumptive  effect  of  the  conduct  of  a  subscriber  after  the 
organization  of  the  company,  in  attending  and  taking  part  in  the  meetings  of 
the  company,  on  the  proper  construction  of  any  special  contract  with  the  cora- 
panv,  is  here  considerablv  discussed. 

[♦208] 


206  ASSESSMENTS    OR   CALLS.  [PART   IL 

5.  But  in  a  somewhat  recent  case  in  Alabama,*  it  was  licM  that 
a  subscription  to  the  capital  stock  of  a  railway  company  in  ex- 
press terms  made  payable  in  work,  in  grading  the  line,  to  be 
taken  at  the  public  or  private  letting  and  performed  to  the  accep- 
tance of  the  company's  engineer,  could  not  be  enforced  against 
the  su])scril)or  until  he  had  had  reasonable  opportunity  to  per- 
form the  contract  in  the  manner  specified  by  its  terms.  But 
if  after  that,  the  defendant  failed  on  his  part  to  perform  it,  he 
was  liable  to  pay  the  amount  in  money.  It  is  here  said  that 
the  subscriber  must  take  notice  of  the  published  lettings  of  the 
work. 

0.  The  cases  may  seem  conflicting  upon  this  point;  but  the 
true  principle  seems  to  be,  that  the  corporation  can  only  enforce 
the  contract  of  subscription  according  to  its  terms,  and  of  this  the 
subscriber  cannot  complain,  or  resist  successfully  the  enforce- 
ment of  his  subscription  in  that  mode.  But  so  far  as  the  credi- 
tors of  the  company  are  interested  in  the  matter,  they  may  hold 
the  directors  res})onsible  for  having  received  the  amount  of  the 
capital  stock  in  money.  And  as  to  the  duty  of  the  directors, 
they  cannot,  in  strictness  and  fairness,  receive  subscriptions  pay- 
able in  any  thing  but  money ;  nor  can  they  launch  the  company 
until  the  whole  capital  stock  is  subscribed  in  money.  And  any 
fraud  or  evasion  in  this  particular  will  render  the  directors  re- 
sponsible for  the  debts  of  the  company,  as  in  equity  and  fair  deal- 
ing it  should. 

*  7.  There  is  a  very  sensible  case  ^  in  North  Carolina  bearing 
upon  this  question.  The  legislature  had  authorized  the  town  of 
Newborn  to  take  stock  in  a  company  for  improving  the  naviga- 
tion of  the  river  Neuse,  by  which  the  business  of  the  town  was 
expected  to  be  advanced.     The  town  was,  by  the  act,  authorized 


*  Eppes  r.  Mississippi,  Gcainesville,  &  Tiiskaloosa  Railroad  Co.,  35  Ala. 
33;  Haywood  &  Pittsborough  riaidi  Road  Co.  v.  Biyan,  G  Jones,  N.  C. 
L.  82. 

s  Neuse  River  Navigation  Co.  v.  Newbern  Commissioners,  7  Jones,  X.  C. 
L.  275.  But  in  Shoemaker  v.  Goshen  Turnpike  Co.,  14  Ohio  St.  oQ"), 
from  the  mere  permission  in  the  statute  to  submit  the  question  of  sub- 
scription to  the  voters  of  a  township,  the  court  implied  the  power  to  issue 
bonds  in  payment  of  such  subscription  in  the  usual  negotiable  form,  and 
to  negotiate  them  to  the  company  at  par,  in  payment  for  the  stock  sub- 
scribed. 

[*209] 


§  ;jS.]  subscription    UPON    SPECIAL   TCRMS.  207 

to  pay  foV  the  stock  subscribed  by  them  willi  their  bonds,  to  liC 
issued  and  sold  on  certain  terms,  but  the  amount  of  bonds  issued 
was  restricted  to  the  amount  of  the  stock  subscribed,  and  it  was 
held,  that  as  the  corporation  could  not,  except  by  lei^islative  sanc- 
tion, accept  anything  but  money  in  payment  of  stock,  and  could 
not  issue  stock  at  any  rate  below  par,  the  bonds  could  not  be  sold 
below  par;  and  that  to  a  mandamus  to  compel  the  town  to  pav 
for  stock  thus  subscribed,  it  must  be  regarded  as  a  sulhcient  re- 
turn, that  the  authorities  of  the  municipality  had  ])rcpared  and 
executed  the  l)on(ls,  and  had  offered  the  same  for  sale  by  pulilic 
advertisement,  and  had  diligently  endeavored  otherwise  to  effect 
a  sale  of  the  same  on  the  terms  prescribed  by  the  statute,  and  had 
not  l)cen  able  to  sell  the  same. 

8.  This  case  unquestionably  puts  these  perplexing  inquiries 
upon  the  true  basis ;  that  is  of  fair  dealing  or  no  dealing  at  all. 
Ihit  we  apprehend  that  railway  contractors  and  builders  would 
regard  it  as  placing  the  matter  in  a  very  impracticaljle  light. 
And  we  are  not  prepared  to  say  how  far  the  courts  will  feel 
justified  in  departing  from  the  strict  letter  of  the  law  in  these 
particulars,  out  of  deference  to  the  speculative  tendencies  of 
the  age. 

9.  It  is  certain  that  corporate  stocks,  from  the  first,  are  now 
always  more  or  less  a  matter  of  speculation  in  the  market; 
and  the  same  is  true  of  all  municipal  bonds  issued  in  aid  of 
enterprises  affecting  the  interests  of  such  corporations.  And, 
iu  fact,  no  one  ever  dreams  of  demanding  strictly  ])ar  values, 
in  dealing  either  with  the  bonds  or  the  stock,  and  we  do  not 
suppose  it  can  now  ever  be  brought  back  to  the  strictly  par 
basis. 

10.  There  seems  to  be  some  question  whether  a  corj»oration 
can  stipulate  to  pay  interest  uj)oii  its  stock  certificates  from  the 
first,  without  regard  to  the  (>arnings  of  the  company.  It  is  certain 
such  a  stipulation  is  at  variauec  with  the  ordinary  duties  of  cor- 
porations, and  will  not  therefore  come  within  the  range  of  the 
iuipliod  authority  of  tlie  directors  of  the  company.  Ihit  in  one 
ease,*^  it  seems  to   have  been   considered,   that  the   stoekholdrrs 

*  iMcLnncrhlin  v.  Detroit  &  :\Iihvaukeo  Railrnnd  Co.,  S  :\licli.  lUO.  It  seems 
scarcely  allowable  to  treat  the  vote  of  the  majority  as  a  ratilication  of  an  act 
of  the  directors  beneficial  to  the  minority,  ami  at  the  same  time  not  l>in<lini; 
upon  the  minoritv  except  by  their  consent.     Richardson  v.  Vermoni  iS:  Massa- 


208  ASSESSMENTS   OR    CALLS.  [PAHT   IL 

might  so  ratify  such  a  stipulation  as  to  render  it  binding  upon 
the  company.  But  we  should  very  seriously  question  if  any  such 
authority  is  implied  from  the  general  grant  of  corporate  power 
for  ordinary  business  purposes,  like  that  of  railways.  It  would 
seem  to  require  a  special  delegation  of  authority  by  the  legisla- 
ture, and  in  that  form  it  is  nothing  but  a  device  for  borrowing 
money,  in  advance  of  launching  the  corporation  upon  its  legiti- 
mate functions,  (c) 

11.  The  case  last  cited  ^  decided  that  such  a  stipulation,  super- 
added to  a  certificate  of  stock,  will  not  defeat  its  original  effect  of 
making  the  holder  a  member  of  the  corporation ;  and  that  if  cer- 
tificates of  stock  be  so  issued  by  the  directors,  it  will  be  regarded 
as  a  sufficient  ratification  of  them  by  the  corporation  that  at  a 
stockholders'  meeting  a  majority  voted  to  pay  such  interest  in  the 
bonds  of  the  company ;  but  the  holders  are  not  thereby  compel- 
lable to  accept  payment  in  that  mode,  unless  they  assented  to  the 
vote. 

chusetts  Railroad  Co.,  44  Vt.  613,  where  the  question  is  very  extensively  ex- 
amined and  placed  on  the  most  plausible  ground,  —  the  ground,  i.  e.  that  such 
a  condition  in  the  subscription  may  be  binding  on  the  company,  whenever  its 
surplus  earnings  will  enable  it  to  meet  the  payment,  which  amounts  to  nothing 
more  than  a  guaranty  of  a  dividend  to  that  amount. 

(c)  But  it  cannot  be  paid  out  of  est  in  any  event  may,  however,  be  given 

capital,  but  only  out  of  profits.    Chaf-  to  a  part  of  the  stockholders  by  the 

fee  I'.  Rutland  Railroad  Co., 55  Vt.  110;  charter.     See  Williams  v.  Parker,  1.36 

McGregor  v.  Home  Insurance  Co.,  33  Mass.  204;  Phillips  v.  Eastern  Rail- 

N.  J.  Eq.  181;  Taft  v.  Hartford  Rail-  road  Co.,  138  Mass.  122. 
road  Co.,  8  R.  I.  310.    A  right  to  inter- 
[*210] 


§59.] 


SUBSCRIPTIONS   OBTAINED    BY    FRAUD. 


209 


♦SECTION   XIII. 


Equitalle  Relief  from  Subscriptions  obtained  by  Fraud. 


1.  Substantial  misrepresentations  in  ob- 

taining    subscriptions     will    avoid 
them. 

2.  But  for  misconduct  of  the  directors, 

not  amounting  to  fraud,  they  alone 
are  liable. 


Purchaser  must  make  reasonable  ex- 
amination of  papers  referred  to. 
No  relief,  where  there  is  no  fraud, 
or  intentional  misrepresentation. 

Directors  cannot  make  profit  for  them- 
selves. 


§  59.  1.  The  directors  of  a  railway  company,  who  make  rep- 
resentations on  behalf  of  the  company  to  induce  persons  to 
subscribe  for  the  stock,  so  far  represent  the  company  in  the  trans- 
action, that  if  they  induce  such  subscription  by  a  substantial 
fraud,  the  contract  will  be  set  aside  in  a  court  of  equity.^  The 
proper  inquiry  in  such  case  is,  "  Whether  the  prospectus,  so  issued, 
contains  such  representations,  or  such  suppression  of  existing 
facts,  as,  if  the  real  truth  had  been  stated,  it  is  reasonable  to  be- 
lieve the  plaintiff  would  not  have  entered  into  the  contract ;  that 
is,  that  he  would  not  have  taken  the  shares  allotted  to  him  and 
those  which  he  purchased."  ^  (a) 

*  Sir  John  Romilly,  M.  K,  in  Pulsford  v.  Richard.s,  17  Beav.  87;  s.  c.  19 
Eng.  L.  &  Eq.  387,  392.  The  prospectus  issued  in  such  cases  is  to  be  regarded 
as  a  representation.  And  where  one  is  induced  to  take  shares  in  a  joint-stock 
company,  through  the  false  and  fraudulent  representations  of  the  directors,  lio 
is  not  liable  to  calls  for  the  purpose  of  paying  the  expenses  of  the  company. 
Royal  British  Bank,  Brockwall's  case,  29  Law  T.  375;  s.  c.  4  Drewry,  205. 
And  where  one  of  the  directors  of  a  company  put  the  name  of  an  extensive 
stockholder  in  the  company,  who  resided  in  a  foreign  country,  to  a  new  sub- 
scription for  forty  additional  shares,  without  consultation  with  such  person,  in 
the  belief  that  he  would  ratify  the  act,  and  he,  on  being  informed  of  such  act, 
made  no  objection  for  the  period  of  nearly  seven  years,  during  which  time  the 
company,  having  no  intimation  of  any  dissent  on  his  part,  applied  his  divi- 
dends in  payment  of  the  subscription,  it  was  held  that  the  subscription  thereby 
became  binding,  and  that  the  party  could  not  recover  such  dividends  of  tho 
company.  Philadelphia,  Wilmington,  &  Baltimore  Railroad  Co.  r.  Cowell, 
28  Penn.  St.  329. 

2  Pulsford  V.  Richards,  17  Beav.  87;  s.  c.  19  Eng.  L.  &  Eq.  392;  Jennings  v. 
Broughton,  17  Beav.  234;  s.  c  19  Eng.  L.  &  Eq.  420.  To  entitle  himself  to 
be  relieved  from  his  subscription,  one  must  show  that  he  acted  on  the  false 


(a)  See  supra,  §  55,  note  (a). 


VOL.  I. 


14 


[♦211] 


210  ASSESSMENTS    OR   CALLS.  [PART   IL 

*  2.  But  the  omission  to  state  in  a  prospectus  the  number  of 
shares  taken  by  the  directors,  or  other  persons  in  their  interest, 
is  no  sucli  fraud  as  will  enable  a  subscriber  to  avoid  his  subscrip- 
tion.2  The  fact  that  the  directors  of  the  company  had  entered 
into  a  contract  with  one,  as  general  superintendent  of  construc- 
tion, for  four  per  centum  upon  the  expenditure ;  and  that  this 
was  an  exorbitant  compensation,  and  was,  in  fact,  intended  to 
compensate  such  person  for  his  services  in  obtaining  the  charter, 
and  that  this  is  not  stated  in  the  prospectus  is  no  such  suppres- 
sion as  will  exonerate  subscribers  for  stock.  "  There  was  not  the 
suppression  of  a  fact  that  affected  the  intrinsic  value  of  the 
undertaking.  That  value  depended  upon  the  line  of  the  pro- 
jected railway,  the  population,  the  commercial  wealtli,  the  traffic 
of  the  places  through  which  it  passed,  the  difficulties  of  the  con- 
struction, and  the  cost  of  the  land  required.  Extravagance  in 
the  formation  of  a  line  of  railway  is  a  question  of  liability  of  the 
individual  directors  to  the  shareholders,  but  not  a  ground  for  an- 
nulling the  contract  between  them."  ^ 

3.  There  can  be  no  question  one  will  be  affected  with  notice  of 
all  facts  discoverable  by  examination  of  papers  referred  to  in  a 
prospectus  for  the  sale  of  shares,  provided  such  papers  are  acces- 
sible to  him,  unless  the  facts  stated  in  the  i)rospectus  are  so 
specific  as  to  divert  interest  from  all  further  inquiry.  It  was  ac- 
cordingly held  that  where  the  contract  of  subscription  bound  the 
subscriber  to  the  terms  of  the  articles  of  association,  an  examina- 
tion of  which  would  have  disclosed  the  facts  upon  which  the  party 
claimed  to  be  relieved  from  his  subscription,  but  that  trusting  to 
the  statements  contained  in  the  prospectus,  he  did  not  look  fur- 
ther, this  neglect  or  omission  was  no  answer  to  his  claim  for 
relief.^  But  the  party  is  not  entitled  to  relief  by  reason  of  the 
representation  of  any  fact,  made  in  good  faith,  and  upon  reason- 
representations  of  the  directors  in  a  matter  of  fact  material  to  tlie  value  of  the 
enterprise,  and  not  on  the  mere  speculation  of  the  directors,  or  on  his  own 
exaggerated  expectations  of  the  prospective  success  of  the  undertaking.  In 
Keese  River  Silver  Mining  Co.  v.  Smith,  17  W.  R.  10i2;  s.  c.  Law  Rep.  4 
H.  L.  64,  Lord  Cairxs  is  reported  to  have  said,  "  If  persons  take  upon  them- 
selves to  make  assertions,  as  to  which  they  are  ignorant  whether  they  are  true 
or  untrue,  they  become,  in  a  civil  point  of  view,  as  responsible  as  if  they  had 
asserted  that  which  they  knew  to  be  untrue;  "  provided  it  prove  to  be  so,  his 
Lordship  intended  to  imply,  of  course. 

8  Central  Railway  Co.  v.  Kisch,  Law  Rep.  2  IL  L.  99. 
[*212] 


§  (50.] 


FORFEITURE   OF   SHARES. — RELIEF   IN   EQUITY. 


211 


able  grounds  of  probability,  but  which  proves  unfounded   upon 
grounds  c(jually  unknown  to  both  parties.* 

4.  But  the  learned  judge  in  one  case  -  suggests,  with  great  pro- 
priety, that  if  the  directors  have  made  contracts,  in  the  course  of 
the  performance  of  their  duties,  from  which  advantage  is  ex- 
jtected  to*  arise  to  themselves,  or  to  others  for  their  beneCit, 
mediately  or  immediately,  they  may,  in  a  court  of  equity,  be 
made  to  stand  in  the  place  of  trustees  to  the  shareholders.^ 


SECTION    XIV. 


Forfeiture  of  Shares.  —  Relief  in  Equity. 


Requirements  of  charter  and  statutes 
as  to  forfeiture  must  be  strictly 
pursued. 

Otherwise  equity  will  set  aside  the  for- 
feiture. 

n.  (a)  At  suit  of  any  shareholder  pro- 
ceeding by  shareiiolder's  bill. 


3.  Company  must  credit  the  stock  at  full 

market  value. 

4.  Provisions  of  English  statutes. 

5.  Evidence  must  be  express,  that  all  re- 

quisite steps  were  pursued. 


§  60.  1.  The  company,  in  enforcing  the  payment  of  calls  by 
forfeiture  of  the  stock,  must  strictly  pursue  the  mode  pointed 
out  in  their  charter  and  the  general  laws  of  the  state.  This  is  a 
rule  of  universal  ap[tlication  to  the  subject  of  forfeitures,  and  one 
which  the  courts  will  rigidly  enforce,  and  more  especially  where 
the  forfeiture  is  one  of  the  prescribed  remedies  given  to  the 
party,  and  against  which  equity  does  not  relieve,  when  fairly 
exercised.^ 

2.  But  as  the  company,  In  such  case,  ordinarily  stand  in  both 
relations  of  vendor  and  vendee,  their  conduct,  in  regard  to  fair- 

*  Kennedy  v.  Tanaraa  Mail  Co.,  Law  Rep.  2  Q.  R.  580. 

6  Infra,  §'mO. 

^  Sparks  v.  Liverpool  Water- Works,  L3  Ves.  428;  Prendergast  p.  Turtoii. 
1  Y.  &  Col.  98,  110-112.  This  case  is  put  mainly  on  the  ground  of  delay  and 
acquiescence,  but  there  is  little  doubt  it  would  have  been  raaintained,  on  the 
general  ground  stated  in  the  text.  See  Edinburgh,  Leith,  &  Newhaven  Kail- 
way  Co.  r.  llobblewiiite,  G  M.  &  W.  707;  s.  c.  2  Uailw.  Cas.  2:}7.  I5ut  where 
the  deed  of  settlement  of  a  joint-stock  company  provides  for  a  forfeiture  of 
the  shares  without  notice  to  the  subscriber,  the  forfeiture  determines  the  title 
without  notice.  Stewart  v.  Anglo-California  Gold  Mining  Co.,  IS  Q.  IJ.  73G; 
s.  c.  11  Eng.  L.  Sc  Eq.  51. 

[*213] 


212  ASSESSMENTS   OR    CALLS.  [PART   IL 

ness,  will  be  rigidly  scrutinized,  and  the  forfeiture  set  aside  in 
courts  of  equity,  upon  evidence  of  slight  departure  from  perfect 
fairness,  (a) 

3.  Hence  where  the  company  declared  the  stock  cancelled,  and 
credited  the  value  at  a  less  sum  than  the  actual  market  price  at 
the  time,  but  more  than  it  would  probably  have  sold  for  if  that 
number  of  shares  had  been  thrown  at  once  into  the  market,  the 
court  set  aside  the  forfeiture,  on  the  ground  that  the  company 
were  bound  to  allow  the  highest  market  price  which  could  be 
*  obtained,  without  speculating  on  what  might  be  the  effect  of 
throwing  a  large  number  of  shares  into  the  market.- 

4.  By  the  English  statute  the  company  are  not  allowed  to  for- 
feit a  larger  number  of  shares  than  will  produce  the  deficiency 
required.^  And  upon  payment  to  the  company  of  the  amount  of 
arrears  of  calls,  interest,  and  expenses,  before  such  forfeited 
shares  are  sold  by  them,  the  shares  revert  to  the  former  owner.^ 

5.  The  evidence  of  the  company  having  pursued  the  require- 
ments of  their  act,  in  declaring  the  forfeiture,  must  be  express 
and  not  conjectural.* 

2  Stubbs  V.  Lister,  1  Y.  &  Col.  81. 

3  Statute  8  &  9  Vict  c.  16,  §§  34,  35. 

4  Cockerell  v.  Van  Diemen's  Laud  Co.,  18  C.  B.  454;  s.  c.  36  Eng.  L.  & 
Eq.  405. 

(o)    An    unauthorized     forfeiture,  of   the    company.     Sweny  v.    Smith, 

•while  it  may  be  annulled  in  equity  at  Law  Rep.  7  Eq.  324.     The  owner  of 

suit  of  the  stockholder  specially  injured,  the  forfeited  stock  has  also  a  right  of 

may  be  annulled  also  at  suit  of  any  action  against  the  corporation  for  the 

shareholder,  proceeding  by  sharehold-  value  of  his  shares, 
er's  bill  for  the  protection  of  the  rights 

[*214] 


§00  a.] 


RIGHT   TO    INSPECT    BOOKS    OP'    COMPANY. 


213 


SECTION  XV. 


Right  of  Corporators  and  Others  to  inspect  Books  of  Company. 


1.  Corporators   or  sliarcholders  may  in- 

spect and  take  minutes  from  books. 

2.  Discussion  of  the  extent  to  which  such 

books  are  evidence. 

3.  Purposes  for  which  such   books  are 

important  as  evidence. 


4.  Books  within  the  rule.     Books  of  pro- 

ceedings of  directors. 

5.  Party  claiming  to  be  sliareholder  may 

inspect  register. 

6.  Whether  inspection  allowed  wlien  suit 

or  proceedings  not  pending. 

7.  Party  may  have  aid  in  the  inspection. 


§  60  a.  1.  It  seems  to  be  conceded  as  a  well-settled  rule  of 
law,  that  the  shareliolders  or  corporators  in  a  joint-stock  corpora- 
tion arc  entitled,  as  matter  of  right,  to  inspect  and  take  minutes 
from  the  books  of  the  company  at  all  reasonable  times,^  (<;)  as 
Ihey  are  the  best  evidence  of  the  facts  there  registered,  and 
c(iually  the  property  of  all  the  proprietors.^  And  the  board  of 
directors  of  the  company  have  no  power  to  exclude  any  member 
from  the  exercise  of  this  right,  even  upon  the  ground  that  he  is 
unfriendly  to  the  interests  of  the  company .^ 

2.  But  it  seems  to  be  now  settled  that  strangers  cannot  obtain 
the  inspection  of  such  books,  even  by  application  to  the  court, 
their  contents  being  regarded  as  private  memoranda,  in  no  sense 
possessing  any  public  character,*  notwithstanding  a  contrary 
*  practice  obtained^  for  a  time.  It  may  sometimes  have  been  as- 
sumed, that  the  books  of  private  corporations  possessed  a  higher 
quality  of  evidence  than  is  the  fact.  We  do  not  apprehend  that 
they  arc  in  any  sense  indispensable  primary  evidence  of  the  facts 
there  recorded.  As  a  general  thing,  as  to  tlie  organization  of  the 
company  and  the  choice  of  officers,  all  that  is  requisite  will  be  to 

*  Ans;eU  &  Ames  Corp.  §  681. 

*  Owings  V.  Speed,  5  Wheat.  420,  424. 

«  People  V.  Throop,  12  Wend.  183;  Cotheal  v.  Brower,  1  Seld.  562. 

*  Southampton  i'.  Greaves,  8  T.  R.  590. 

*  Lynu  i;.  Deuton,  1  T.  R.  689,  and  cases  cited. 


(a)  Commonwealth  r.  Phoenix  Iron 
Co.,  105  Penn.  St.  Ill;  State  r.  Ein- 
stein, 46  N.  J.  Law,  479;  Union  Na- 
tional Bank  v.  Hunt,  76  Mo.  439.   The 


matter  is  to  some  extent  regrulated  by 
statute,  as  in  England  and  in  Now 
York. 

[*215] 


214  ASSESSMENTS    OR   CALLS.  [PART   II. 

prove,  de  facto ^  the  organization  of  the  company  and  the  exercise 
of  such  offices  by  the  persons  named.  Where  it  is  requisite  that 
an  authority  be  given  by  the  majority  vote  of  the  company,  it  may 
most  conveniently  be  shown  by  the  record,  and  perhaps  in  such  a 
case  the  records  of  the  corporation  may  fairly  be  considered  the 
best  proof  of  the  facts,  if  in  the  power  of  the  party,  as  if  the  cor- 
poration itself  were  called  to  prove  such  vote.  But  any  party  not 
entitled  to  the  custody  of  the  papers  can  only  prove  their  contents, 
unless  the  corporation  is  the  opposing  party,  in  which  case  he 
may  give  notice  to  produce  the  books,  and,  in  default,  may  prove 
the  contents  by  secondary  evidence.  It  has  been  decided  that  the 
clerk  of  the  company  cannot  be  compelled  to  produce  the  books 
on  a  subpoena  duces  tecum.^ 

3.  It  has  been  held  that  a  bank  depositor  has  the  right,  under 
proper  circumstances  and  in  a  reasonable  manner,  to  inspect  the 
books  of  the  bank."  In  practice  it  is  not  one  time  in  ten  where 
the  record  books  of  a  corporation  are  ever  referred  to  in  court, 
unless  to  fix  a  date  or  the  precise  form  of  a  vote  upon  which  a 
power  is  made  to  depend.  But  the  registry  of  shareholders  may 
be  properly  regarded  as  the  primary  evidence  of  membership,  but 
by  no  means  indispensable  or  conclusive.^ 

4.  Where  the  deed  of  settlement  under  which  a  corporation  is 
registered  contained  a  provision  "  that  the  books  wherein  the 
proceedings  of  the  company  are  recorded  shall  be  kept  at  the 
principal  office  of  the  company,  and  shall  be  open  to  the  inspec- 
tion of  the  shareholders,"  it  was  held  that  the  clause  gave  share- 
holders power  only  to  inspect  the  books  of  minutes  of  proceedings 
of  the  general  meetings,  and  not  of  the  minutes  of  the  proceedings 
of  the  directors.^ 

*  5.  In  a  somewhat  recent  English  case  ^^  it  was  held,  that  a 
party  whose  claim  to  be  a  shareholder  is  disputed  by  the  company 
may,  in  an  action  brought  against  the  company,  inspect  any  en- 
tries in  the  register  which  relate  to  the  matter  in  dispute. 

*  Utica  Bank  v.  Hillard,  5  Cow.  419;  Narragansett  Bank  v.  Atlantic  Silk 
Co.,  3  Met.  282. 

■'  Union  Bank  v.  Knapp,  3  Pick.  96. 

*  We  refer  to  what  we  have  before  said  on  the  subject,  supra,  §  18,  pi. 
10-13;  §  23,  note  8. 

8  Regina  v.  Mariquita  Mining  Co.,  1  Ellis  &  E.  289. 
i»  Foster  v.  Bank  of  England,  8  Q.  B.  689. 
[*216] 


§  00  a.]  RIGHT   TO    INSPECT    BOOKS    OF   COMPANY.  215 

G,  And  ill  a  still  more  recent  case,  where  one  of  the  members 
of  the  corporation  was  in  controversy  with  the  company  in  rc^^ard 
to  his  right  to  act  as  one  of  the  governing  body,  which  right  de- 
pended upon  an  inspection  of  the  records  of  the  company  iu  order 
to  determine  its  usages,  the  court  granted  permission  to  inspect 
the  books. ^^  But  it  is  here  said  this  will  not  be  dune  unless  there 
is  a  suit  or  some  proceedings  i)ending. 

7.  And  in  the  inspection  of  all  documents,  by  order  of  the 
Court  of  Chancery,  the  party  in  whose  favor  the  order  is  made 
has  the  right  to  have  such  aid  in  the  inspection,  either  by  counsel, 
interpreters,  or  experts,  as  will  make  the  inspection  available  to 
him.12 

"  Regina  r.  Saddler's  Co.,  10  W.  R.  87,  per  Cromptox,  J.,  at  chambers. 

*2  Swansea  Vale  Railway  Co.  v.  Budd,  Law  Rep.  2  Eq.  274;  s.  c.  12  Jar. 
N.  s.  561.  As  to  the  effect  of  the  certificate  of  the  clerk  of  a  corporation 
under  its  seal,  see  New  Orleans,  Jackson,  &  Great  Northern  Railroad  Co.  v. 
Lea,  12  La.  An.  388.  A  passenger,  who  has  brought  suit  against  a  railway 
company  for  injury  sustained  on  its  line,  has  the  right  to  inspect  the  record  of 
accidents  kept  by  the  company,  on  the  report  of  the  conductor,  in  obedience  to 
the  statute.  WooUey  v.  North  London  Railway  Co.,  17  W.  R.  650;  s.  c  17 
W.  R.  797;  Law  Rep.  4  C.  P.  602. 

[♦21G] 


PART  III. 

THE   LAW  OF  RIGHT   OF   WAY,   EMINENT 
DOMAIN,  ETC. 


PART  Til. 

THE  LAW   OF  RIGHT  OF   WAY,   EMINENT 
DOMAIN,   ETC. 


♦CHAPTER   X. 

RIGHT   OF   WAY   BY   GRANT. 


SECTION    I. 


Obtaining  Lands  by  express  Consent. 


1.  Right  to  obtain  under  the  Englisli 

statute. 

2.  Persons  under  disability. 

3.  n.  2.  Money  to  take  the  phice  of  the 

land. 
n.  (a)  Persons  of  whom  in  this  country 
it  may  be   obtained,  —  equitable 
owners,  husbands,  trespassers,  &c. 

4.  Consent  to  pass  line  of  another  com- 

pany. 

5.  Right  of  companies  acquiring  by  pur- 

chase in  this  country. 
C.  License  to  build  railway.     Construc- 
tion. 

7.  Company  bound  by  conditions  indeed. 

8.  Parol  license  good  till  revoked. 

9.  Sale  of  road  under  mortgage  no  aban- 

donment. 


10.  Deed  conveys  incident ;  not  explain- 

able by  parol. 

11.  Grantor  cannot  derogate  from  com- 

pulsory grant. 

12.  But  this  does  not  apply  to  accidental 

incidents. 

13.  Decision  somewhat  at  variance  with 

the  preceding  cases. 

14.  A    municipal    corporation    m.\v    bo 

bound  by  implied  contract  in  the 
grant  of  land  so  as  not  to  be  at 
liberty  to  recede  from  it. 

15.  Mere  agreement  to  sell,  although  in 

writing,  will  not  justify  an  entry 
on  the  land,  nor  defeat  proceed- 
ings under  the  statute  to  recover 
damages  for  taking  it. 


§01.  1.  The  English  statute^  enables  railway  companies  to 
juirchasc,  by  contract  with  the  owners,  (a)  "  all  estates  or  inter- 

^  Statute  8  &  9  Vict.  c.  18,  §  G.  In  this  country  companies  have  the  right, 
on  general  principles,  to  acquire  the  right  of  way  by  contract  with  the  land- 
owners. But  such  concessions  by  natural  persons  to  public  companies  will 
receive  a  reasonably  strict  construction,  so  as  to  secure  the  rights  of  laud> 
owners.     Uuangst's  Appeal,  55  Peun.  St.  128. 

(a)  Here  right  of  way  can  be  had  of  or  by  estoppel.  It  cannot  be  had  of  an 
no  one  but  the  owner,  either  by  deed    equitable  owuer  of  an  undivided  in- 

[-17] 


220 


RIGHT   OF   WAY   BY   GRANT. 


'[part   III. 


ests  (in  any  lands)  of  what  kind  soever,"  if  the  same,  or  the 
right  of  way  over  them,  be  requisite  for  their  purposes. 

2.  And  by  another  section  of  the  same  statute  such  companies 
are  empowered  to  purchase  such  lands  of  persons  legally  inca- 
pacitated to  convey  the  title,  under  other  circumstances,  as  guar- 
dians of  infants,  committees  of  lunatics,  trustees  of  charitable  or 
other  uses,  tenants  in  tail,  or  for  life,  married  women  seised  in 
their  own  right,  or  entitled  to  dower,  executors  or  administrators, 
and  all  parties  entitled,  for  the  time  being,  to  the  receipt  of  the 
rents  and  profits.^  (b) 

*  Hutton  V.  London  &  Southwestern  Railway  Co.,  7  Hare,  264.  Some  sug- 
gestions are  here  made  by  Vice-Chancellor  Wigram  iu  regard  to  the  time  within 
which  it  is  requisite  to  make  compensation  in  the  several  modes  of  taking 


terest  in  a  reversion,  nor  can  it  exist 
over  an  undivided  interest  alone. 
Taput  V.  Detroit,  Grand  Haven,  &  Mil- 
waukee Railway  Co.,  50  Mich.  267. 
Nor  can  it  be  had  from  a  holder  of  a 
contingent  dower  interest,  or  from  a 
tenant  at  will.  Toledo,  Ann  Arbor, 
&  Grand  Trunk  Railway  Co.  v.  Dun- 
lap,  47  Mich.  456.  But  a  husband 
having  absolute  control  and  manage. 
ment  of  land,  the  legal  title  of  which 
is  held  by  another,  for  the  benefit  of 
his  wife  and  children,  may  give  a  li- 
cense good  so  long  as  he  lives,  if  it 
does  not  injuriously  affect  his  duties 
under  the  deed.  Tutt  v.  Port  Royal  & 
Augusta  Railroad  Co.,  16  S.  C.  365.  De- 
sistance  from  opposition  by  a  raei'e  tres- 
passer is  no  consideration  for  a  promise 
to  pay  to  quiet  opposition.  Botkin 
V.  Livingston,  21  Kan.  232.  A  con- 
veyance with  a  reservation  of  a  spring 
and  a  right  to  lay  pipes  thereto  lield 
not  to  preclude  the  company  from  lay- 
ing a  track  over  the  spring,  the  spring 
being  properl}'  protected.  Matthews 
V-  Delaware  &  Hudson  Canal  Co.,  27 
Hun,  427.  Agreement  to  convey  more 
land  than  covenantor  owns.  Hutchin- 
son V.  Chicago  &  Northwestern  Rail- 
way Co.,  41  Wis.  541.  An  agreement 
[*217] 


to  convey  construed.  Wheeling,  Pitts- 
burg, &  Baltimore  Railroad  Co.  v. 
Gourley,  99  Pa.  St.  171.  Conveyances 
construed.  Warner  i;.  Sandusky,  &c., 
Railroad  Co.,  11  Am.  &  Eng.  Railw. 
Cas.  417;  Hutchinson  v.  Chicago  & 
Northwestern  Railway  Co.,  37  Wis. 
582. 

As  to  when  an  action  will  lie  for 
breach  of  an  agreement  under  which 
the  company  has  taken  possession,  see 
Kansas  Pacific  Railway  Co.  v.  Hop- 
kins, 18  Kan.  494.  And  against 
whom,  see  Preston  v.  Liverpool,  Man- 
chester, &  Newcastle  Railroad  Co.,  1 
Sim.  N.  s.  586. 

As  to  measure  of  damages  for  breach 
of  a  contract  to  convey,  see  New 
Haven  &  Northampton  Co.  v.  Ilayden, 
117  I\Iass.  433;  Varner  v.  St.  Louis  & 
Cedar  Rapids  Railway  Co.,  55  Iowa, 
677 ;  Davies  i'.  St.  Louis,  Kansas  City, 
&  Northern  Railway  Co.,  56  Iowa, 
192. 

(h)  Purchase-money  paid  into  court 
under  the  statute,  for  land  of  which  an 
infant  is  seised  in  fee,  takes  the  place 
of  the  land  and  descends  to  the  heirs. 
Kelland  v.  Fulford,  Law  Rep.  6  Ch. 
D.  491. 


§  Gl.]       OBTAINING  LANDS  BY  EXPRESS  CONSENT.  221 

*  3.  The  valuation  in  tliis  latter  class  of  cases  is  to  be  made  Ijy 
disinterested  persons,  and  the  price  paid  into  the  bank  for  the 
benefit  of  the  parties  interested. 

4.  And  wlicrc  a  railway  act  provided,  in  terms,  that  nothinf^ 
therein  should  authorize  the  conijjany  to  do  any  damage  or  preju- 
dice to  tlie  lands,  estate,  or  property  of  any  corporation  or  person 
whatsoever,  without  the  consent  in  writing  of  the  owner  and 
oi:cupier,  it  was  held  they  could  not  pass  the  line  of  another 
railway  without  their  consent,  although  the  withholding  of  such 
consent  should  frustrate  the  purpose  of  the  grant.^ 

5.  In  this  country  most  of  the  railway  charters  contain  a  power 
to  the  company  to  acquire  lands,  by  agreement  with  the  owner. 
In  such  case  it  has  been  held  the  rights  of  the  company  are  the 
same  as  where  they  take  their  land  under  their  compulsory 
powers.  And  they  are  bound  to  the  same  care  in  constructing 
their  road.* 

(').  And  whore  the  railway  have  the  power  to  take  five  rods, 
through  the  whole  course  of  their  line,  and  a  land-owner  deeds 
them  the  full  right  to  locate,  construct,  and  repair,  and  forever 
maintain  and  use  their  road  over  his  land,  if,  in  laying  the  drains 
or  ditches  through  the  land,  it  becomes  necessary  to  go  beyond 
the  limits  of  the  five  rods,  in  order  to  guard  against  the  effect  of 

lands.  The  principal  point  settled  is,  that  in  regard  to  lands  injuriously 
alTected  by  railway  works  on  other  lands,  it  is  not  requisite  to  make  compen- 
sation in  advance.  But  where  lands  are  purchased  from  persons  under  dis. 
ability,  the  course  of  devolution  of  the  property  is  not  tiiereby  changed,  but 
the  money  paid  in  compensation  is  to  take  the  place  of  the  land,  and  to  be 
treated  as  real  estate.  Midland  Counties  Railway  Co.  v.  Oswin,  1  Coll.  74; 
8.  c.  3  Railw.  Cas.  497;  Ex  parte  Flamank,  1  Sim.  N.  s.  260;  In  re  Horner's 
Estate,  o  l)e  G.  &  S.  48:5;  s.  c.  13  Eng.  L.  &  Eq.  531;  In  re  Stewart's  Estate, 
1  Sm.  &  G.  32;  s.  c.  13  Eng.  L.  &  Eq.  533. 

«  Clarence  Railway  Co.  v.  Great  North  of  England  Railway  Co.,  4  Q.  B. 
45;  Gray  v.  Liverpool  &  Bury  Railway  Co.,  9  Beav.  391;  s.  c.  4  Railw.  Cas. 
235. 

♦  Whitcomb  v.  Vermont  Central  Railroad  Co.,  25  Vt.  49,  09.  Tliis  right 
to  acquire  lands,  by  contract  with  the  owners,  is  probably  limited,  by  impli- 
cation, if  not  expressly,  to  the  necessities  of  the  company,  the  same  .as  the 
right  to  take  in  invilum,  and  cannot  be  extended  to  any  private  use.  But  if 
the  owner  of  the  land  consent  to  the  use,  the  constitutional  objection  i.s  re- 
moved, and  the  right  to  hold  the  land  is  a  question  between  the  company  and 
the  public.  Dunn  v.  Charleston.  Harper,  189;  Harding  v.  Goodlett,  3  Yerg. 
41;  11  Weud.  149;  Embury  i;.  Conner,  3  Comst.  516. 

[*218] 


222  RIGHT   OP  WAY    BY   GRANT.  [PART   III. 

a  stream  to  bo  passed,  the  company  may  lawfully  do  so  under  the 
grant.^  (e) 

*  7.  In  case  of  a  deed  to  a  railway  company  of  land,  on  wliicli 
to  construct  their  road,  the  assent  of  the  company  will  be  pre- 
sumed, and  they  are  bound  by  the  conditions  of  the  grant,  (d)  as 
that  the  road  shall  be  so  constructed  as  not  to  interfere  with 
buildings  on  the  land.^ 

5  Babcock  v.  Western  Railroad  Co.,  9  Met.  553 ;  s.  c.  1  Redf.  Am.  Railw. 
Cas.  191.  But  a  contract  with  the  owner  of  land  for  leave  to  build  the  road 
through  his  land,  and  staking  out  the  track  through  the  land,  is  not  such 
occupation  as  will  be  notice  of  the  right  of  the  company  against  a  subsequent 
mortgagee.  Merritt  v.  Northern  Railroad  Co.,  12  Barb.  605.  But  the  pay- 
ment by  the  company  of  the  price  of  the  land,  and  changing  its  route  in  faith 
of  the  title,  might  give  an  equity  superior  to  that  of  a  subsequent  mortgagee. 
lb.  The  deed  of  one  tenant  in  common  is  a  good  release  of  his  claim  for 
damages,  although  it  convey  no  right  as  against  his  co-tenant.  Draper  v. 
Williams,  2  Mich.  53t).  But  an  agreement  to  sell  land  to  a  railway  company, 
and  a  tender  of  the  price  by  the  company,  gives  no  title.  Whitman  v.  Boston 
&  Maine  Railroad  Co.,  3  Allen,  133. 

^  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  S.  74.  And  the  rights  and 
duties  of  the  company,  in  such  case,  are  precisely  the  same  as  if  the  land  had 
been  condemned,  by  proceedings  in  invitum,  under  the  statute.  Norris  v.  Ver- 
mont Central  Railroad  Co.,  28  Vt.  99.  Such  grant  carries  the  incidents  neces- 
sary to  its  enjoyment;  and  if  it  become  necessary,  in  constructing  the  road,  to 

(c)  Where  by  statute  the  company  over  the  land.  See  East  Line  &  Red 
may  receive  conveyances  of  a  right  of  River  Railroad  Co.  v.  Garrett,  52  Tex. 
way  not  exceeding  a  certain  width,  a  133.  And  see  Hastings  &  Avoca 
conveyance  not  specifying  the  width  Railroad  Co.  v.  Miles,  56  Iowa,  447. 
will  give  a  right  of  way  as  wide  as  the  Failure  to  perform  a  condition  subse- 
company  may  wish  to  occupy,  not  quent  is  no  ground  for  setting  aside  the 
exceeding  that  named  in  the  statute,  conveyance.  Stringer  r.  Mount  Pleas- 
Indianapolis,  Peru,  &  Chicago  Railway  ant  &  Northern  Railroad  Co.,  59  Iowa, 
Co.  V.  Rayl,  69  Ind.  424.  A  deed  for  277.  And  see  Galveston,  Harris- 
a  strip  of  land  of  a  certain  width  burg,  &  San  Antonio  Railroad'  Co.  v. 
along  a  line  yet  to  be  established  con-  Pfeuffer,  56  Tex.  66.  Nor  will  title 
veys  a  mere  floating  right.  Detroit,  revert.  Texas  &  New  Orleans  Rail- 
Hillsdale,  &  Indiana  Railroad  Co.  v.  way  Co.  v.  Sutor,  56  Tex.  496.  After 
Forbes,  30  Mich.  165.  conveyance  with  promi.^e  that  company 

(c?)  A  condition  that  a  certain  sys-  shall  construct  crossings,  the  company 

tern  of  drainage  be  kept  up  is  a  con-  cannot  evade  its  contract  by  proceed- 

dition  subsequent.    Hammond  v.  Port  ings  to  condemn.  Gray  v.  Burlington 

Royal   &   Augusta   Railroad  Co.,   15  &  Missouri   River    Railroad    Co.,   37 

S.  "c.  10;  s.  c.  16  S.  C.  567.     Stipula-  Iowa,  119. 
tion  that  company  will  locate  its  road 
[*2t9] 


§  61.]  OBTAINING   LANDS    BY    EXPRESS   CONSENT.  223 

8.  An  oral  permission  to  take  and  use  land  for  a  railway  is  a 
bar  to  the  recovery  of  damages  for  such  use,  until  the  permission 
is  revoked."  (e)  In  one  case  before  the  House  of  Lords,^  a  very 
important,  and  as  it  seems  to  us  reasonable  and  just  qualification 
is  annexed  to  the  familiar  doctrine  of  implied  assent  to  the  appro- 
priation of  land  to  a  permanent  use,  by  the  owner  standing  by 
and  not  objecting.  It  is  here  ruled,  "  If  a  stranger  builds  upon 
tlic  land  of  A.,  supposing  it  to  be  his  own,  and  A.  remains  wil- 
fully passive,  equity  will  not  allow  him  to  profit  by  the  mistake ; 
but  if  the  stranger  knows  that  the  land  upon  which  he  is  building 
belongs  to  A.,  then  A.  may  assert  his  legal  rights  and  take  the 
*  benefit  of  the  expenditure.     And  a  tenant  building  upon  his 

make  a  deep  cut,  it  may  be  made,  and  the  company  is  not  bound  to  protect 
the  banks  of  the  excavation  by  a  wall.  Ilortsman  v.  Lexington  &  Covington 
Railroad  Co.,  18  B.  Monr.  218.  See  also  Louisville  &  Nashville  Railroad  Co. 
r.  Thompson,  18  B.  Monr.  735. 

'  Miller  v.  Auburn  &  Syracuse  Railroad  Co.,  G  Hill,  Gl.  It  seems  to  have 
been  made  a  question  whether  the  company,  after  the  revocation  of  such 
license,  could  be  allowed  to  remove  the  fixtures  of  the  road  from  the  land, 
such  as  rails,  spikes,  &c.,  and  it  was  held  it  might  remove  them  as  trade 
fixtures.  Northern  Central  Railroad  Co.  v.  Canton  County,  30  Md.  347. 
And  such  license,  when  executed  by  the  construction  of  the  work,  is  not 
allowed  to  be  revoked.  The  only  relief  the  party  is  entitled  to  is  compensa- 
tion for  his  land.  Trenton  Water-Power  Co.  v.  Chambers,  1  Stock.  471.  An<l  it 
was  lield  in  Corby  v.  Hill,  4  C.  B.  n.  8.  ooG;  s.  c.  31  Law  T.  181,  that  wlicre 
the  owner  of  land  had  given  oral  permission  to  one  for  a  private  way,  he  could 
not  obstruct,  nor  give  permission  to  others  to  obstruct,  the  way;  and  th.it 
where  a  third  person,  by  permission  of  the  landowner,  place<l  building  materials 
in  the  way,  wiiereby  an  injury  accrued  to  the  person  having  the  way,  he  niiglit 
sue  for  such  injury. 

8  Ramsden  v.  Dyson,  Law  Rep.  1  H.  L.  123;   s.  c.  12  Jur.  n.  s.  506. 

(c)  Buchanan  r.  Logansport,  &c.  the  licensor  may  be  restrained  from 
Railway  Co.,  71  Ind.  2G5.  See  Bidder  legal  proceedings  pending  condemna- 
r.  North  Staffordshire  Railway  Co.,  tion  proceedings.  Baltimore  &  Han- 
Law  Rep.  4  Q.  B.  412.  And  a  gift  over  Railro.ad  Co.  v.  Algire,  G'l  Md. 
of  a  right  of  way  to  one  company  is  a  319.  But  a  company  laying  a  track  by 
bar  to  proceedings  by  the  giver  for  an  permission  across  the  track  of  another 
injunction  to  restrain  use  thereof  by  acquires  title  only  to  what  it  occupies, 
the  licensee  of  the  donee.  Holbert  although  it  is  a  part  of  a  larger  par- 
V.  St.  Louis,  Kansas  City,  &  Northern  eel  reserved  by  the  company,  who.se 
Railway  Co., 38  Iowa,  315.  Though  the  track  is  crossed  from  a  previous  grant, 
right  of  way  may  not  be  acquired  by  Illinois  Central  Railroad  Co.  i-.  Indiana 
mere  license,  where  the  road  is  built,  &  Illinois  Railway  Co.,  85  111.  211. 

[♦220] 


224  RIGHT   OP   WAY   BY   GRANT.  [PART   III. 

landlord's  land,  in  the  absence  of  such  special  circumstances, 
acquires  no  right  against  him  at  the  expiration  of  the  tenancy. 
But  a  mere  license  to  build  works  connected  with  a  railway,  the 
damages  to  be  settled  with  a  person  named,  or  "  on  equitable 
terms  hereafter,"  does  not  amount  to  any  definite  agreement.^  (/) 
9.  Where  land  is  conveyed,  for  the  use  of  a  railway,  upon  con- 
dition that  it  shall  revert  to  the  owner  upon  the  abandonment  of 
the  road,  and  the  road  was  sold,  under  a  mortgage,  to  the  state, 
and  by  the  state  and  by  new  companies  chartered  for  that  pur- 
pose completed,  it  was  held,  that  the  grantor  was  not  entitled  to 
hold  the  land. 10 

^  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  58. 
But  a  writing  whereby  the  owner  of  land  along  the  line  of  a  contemplated 
gravel  road  gave  the  road-company  the  right  to  enter  on  his  land  anywhere 
within  a  mile  of  the  contemplated  road  and  dig  and  remove  gravel,  as  much 
as  it  might  require,  was  held  not  a  mere  license,  but  a  grant  irrevocable. 
Bracken  v.  Rushville  Gravel  Road  Co.,  27  Ind.  346. 

1'^  Harrison  v.  Lexington  &  Ohio  Railroad  Co.,  9  B.  Monr.  470.  So,  too, 
if  land  is  conveyed  on  condition  that  a  water-tight  embankment  over  a  brook 
crossing  the  land  shall  be  erected  by  the  grantors,  and  that  the  embankment, 
or  dam,  with  the  floodgates  or  sluices  therein,  may  be  used  for  hydraulic 
purposes  by  the  grantors,  the  grantees  not  to  be  liable  to  the  grantors  for  any 
damage  they  may  sustain  by  a  break  in  such  dam,  unless  the  same  shall  happen 
through  the  gross  neglect  or  wilful  misfeasance  of  the  grantees,  but  that  the 
grantees  shall  repair  the  dam  forthwith,  it  is  a  condition  subsequent,  the  failure 
to  perform  which  will  give  the  grantors  a  right  of  re-entry  at  their  election. 
But  conveyance  of  the  estate  by  the  grantees  will  defeat  the  condition,  and 
the  assignee  will  have  no  remedy  on  it.  Underhill  v.  Saratoga  &  "Wash- 
ington Railroad  Co.,  20  Barb,  455.  And  such  conditions  may  be  waived 
by  the  party  in  whose  favor  they  are  made,  as  e.  g.  a  condition  in  a  grant  of 
land  for  a  railway  track,  that  the  road  shall  be  completed  by  a  day  named  or 
the  deed  be  void,  may  be  deemed  waived  when  the  grantor  continues  to  treat 
the  company  as  having  the  right  to  use  the  land  for  the  purposes  of  the  grant. 
Ludlow  V.  New  York  &  Harlem  Railroad  Co.,  12  Barb.  440.  The  mere  per- 
mission by  a  railway  company,  that  some  of  their  warehouses  or  engine- 
houses  shall  be  used  by  private  dealers  for  warehousing  purposes  on  payment 
of  rent,  will  not  operate  as  a  forfeiture  of  the  rights  of  the  company  in  favor 
of  the  owner  of  the  fee,  but  will  entitle  him  to  maintain  a  writ  of  entry 

(/)  When  the  landowner  in  writing  session  and  use,  the  company  not  being 

agrees   to  sell  and   convey,  and   the  in  default.     He  has  waived  his  right 

company    takes   possession   and  pro-  previous  to   assessment  of  damages, 

ceeds  to  construct  its  road,  the  owner  Baltimore,  Pittsburg,  &  Chicago  Rail- 

cannot  have  an  injunction  against  pos-  road  Co.  v.  Highland,  48  Ind.  381. 
[*220] 


§  01.]  OBTAINING    LxVNDS    BY    EXPRESS   CONSENT.  225 

10.  Where  land  was  conveyed  to  a  railway  company,  fur  the 
purpose  of  constructing  their  road,  on  which  was  a  tenement,  and 
to  this  water  was  conveyed  by  an  afjueduct  from  anotlicr  portion 
of  the  land  of  the  defendant,  and  the  price  of  the  land  was  fixed 
by  the  commissioners,  the  defendant  at  the  time  claiming  the 
right  to  withdraw  the  water,  and  this  not  being  objected  t(j  In- 
the  president  and  engineer  of  the  company,  who  were  present  at 
the  *  time,  it  was  held,  that  the  deed  containing  no  exception  in 
regard  to  the  water,  the  company  acquired  the  right  to  its  use  in 
the  manner  it  had  been  before  used,  and  the  defendant  was  liable 
to  an  action  for  diverting  it,^^  and  the  intention  of  the  parties 
could  not  be  determined  by  extraneous  evidence. 

11.  So,  also,  tlie  principle  that  a  grantor,  knowing  the  purpose 
for  which  his  deed  is  accepted,  cannot  derogate  from  his  own 
grant,  applies  to  the  case  of  a  compulsory  conveyance,  under 
legislative  authority,  and  the  act  is  sufiicient  notice  to  the  grantor 
of  the  purposes  of  the  conveyance.  But  this  rule  will  not  apply  to 
any  accidental  state  of  facts  existing  at  the  time  of  the  grant,  as  the 
support  resulting  from  an  excavation  being  lilled  with  water  at  the 
time,  so  as  to  entitle  the  grantee  to  insist  ujton  its  continuance.  (</) 

12.  And  accordingly,  where  a  railway  took  the  land  aliove  a 
niiiie  for  the  support  of  the  abutments  of  a  bridge,  the  mine  hav- 
ing been  abandoned  for  forty  years  and  full  of  water,  it  was  held 
they  could  not  insist  upon  having  the  water  remain  in  the  pit,  as 
a  support  to  the  earth,  but  that  they  were  entitled  to  be  protected 
from  damage  likely  to  result  from  working  the  mine.^- 

13.  If  a  railway  have  power  to  take  land  by  consent  of  the 
ovv'ner,  an  oral  consent  is  sufficient. ^^     And  if  the  company  take 

against  the  company  for  the  establishment  of  his  rii,'ht  therein,  and  to  recover 
mesne  profits  during  such  niisappropri.ation  of  the  land.  Locks  &  Canals  Tro- 
prii'tors  v.  Niishua  &  Lowell  Railroad  Co.,  104  Mass.  I. 

"  Vermont  Central  Railroad  Co.  v.  Hills,  23  Vt.  G8L 

'-  North  Eastern  Railway  Co.  i-.  Elliott,  1  Johns.  &  IL  115;  s.  c.  0  Jur.  x.  s. 
817. 

"  Central  Railroad  Co.  v.  Ilitfield,  uDutcher,  20G;  s.  c  iu  error,  5  Dutclier, 
571. 

(//)    Although  a  company  purchas-  scriptive    right   to   windows    looking 

ing  acquires   the   fee,   it   acquires   it  across  the  line  of  the  road.     Norton 

merely  for  the   purpose  of  the  road,  v.   London   &.  Xorthwcsteru   Railway 

and  cannot  by  the  erection  of  a  board-  Co.,  Law  Rep.  'J  Ch.  023. 
ing  prevent  the  acquirement  of  a  pre- 

VOL.  i.-lo  [*221] 


220  RIGHT  OF  WAY  DY  GRANT.  [PART  III. 

land  and  put  it  to  their  use  without  tlic  consent  of  the  owner,  or 
any  other  proceeding  under  their  powers,  it  is  a  trespass,  but  can 
only  be  sued  for  by  the  person  then  owning  the  land,  and  not  by 
his  grantee.^-'^  But  this  case  was  reversed  upon  error,  and  it  was 
decided,  somewhat  at  variance  with  the  present  English  rule,  that 
such  a  license,  coupled  with  an  interest,  was  still  revocable  at  the 
option  of  the  licensor.  But  the  final  conclusion  of  the  court  of 
error,  that  "  consent,"  in  such  an  act,  meant  the  effectual  consent 
of  the  law  expressed  with  due  formality,  seems  altogether  the 
more  reasonable  ground  upon  which  to  place  the  case. 

14.  The  New  York  Court  of  Appeals  ^^  held  that  municipal  cor- 
porations, as  to  their  rights  and  powers  over  lands  owned  by  the 
corporation,  were  to  be  viewed  the  same  as  any  other  owner  *  of 
land,  and  that  their  acts  and  resolutions  in  regard  to  the  use 
of  such  land  by  others  were  not  to  be  regarded  as  either  of  a 
legislative  or  governmental  character;  and  that  although  such 
corporations  have  no  power  as  a  party  to  make  contracts  w^hich 
shall  control  or  embarrass  their  legislative  powers  and  duties, 
yet,  as  these  legislative  duties,  or  powers,  only  extend  to  regula- 
tions of  police  and  internal  government,  and  not  to  the  mere  im- 
position of  a  sum  of  money  for  revenue  purposes,  an  ordinance 
imposing  a  license  duty  upon  city  cars,  for  revenue  purposes  only, 
is  not  an  ordinance  for  police  and  internal  government,  and  the 
imposition  of  an  annual  tax  upon  a  city  passenger  railway,  in  der- 
ogation of  its  rights  as  defined  by  a  specific  agreement  between 
the  city  and  the  railway  company,  for  purposes  of  revenue  merely, 
is  unlawful  and  void.^^ 


1*  New  York  v.  Second  Avenue  Railroad  Co.,  32  X.  Y.  2G1 ;  s.  c.  34  Barb. 
41,  where  the  case  was  similarly  ruled. 

1*  The  terms  of  tliis  contract  appear  more  fully  where  the  case  is  reported 
in  Barbour.  It  prescribed  the  regulations  to  which  the  company  should  be 
liable,  requiring  no  further  license,  and  reserving  no  power  to  require  oue 
thereafter.  This  was  held  to  preclude  the  city  authority  from  making  the 
imposition  demanded.  It  would  seem,  that  the  case  might  have  been  decided, 
in  conformity  with  the  ^dissenting  opinion  of  Inguaham,  J.,  in  the  court 
below,  without  any  great  violence  to  principle.  See  also  Branson  v.  Phila- 
delphia, 47  Penn.  St.  329;  Veazie  v.  Mayo,  45  Me.  560;  People  v.  New  York 
&  Harlem  Piailroad  Co.,  45  Barb.  73;  Vilas  v.  Milwaukee  &  Mississippi  Rail- 
road Co.,  15  Wis.  233.  A  grant  of  land  to  the  use  of  a  highway  seems  to  be 
regarded  as  giving  the  municipal  authorities  the  same  rights  to  its  use  that  they 
have  where  the  land  is  condemned  for  that  purpose.  Murphy  r.  Chicago,  29  111. 
r*2221 


§  ^1-] 


OBTAINING    LANDS    I5Y    KXI'RESS    CONSENT. 


227 


15.  Proof  of  a  written  agreement  to  sell  land  to  a  railway  com- 
pany at  a  given  price,  within  a  limited  time,  and  a  tender  of  the 
same  within  the  time,  and  a  refusal  to  accept,  will  not  justify  the 
company  in  locating  their  road  upon  the  land,  oi'  defeat  procced- 
ing.s  under  the  statute  to  recover  damgcs  for  such  location.'*^  (Ji) 

270.  The  grant  to  a  railway  company  of  a  right  to  build  a  tunnel  will  not 
preclude  the  owner  of  the  land  from  digging  minerals  under  the  tunnel,  in 
conformity  with  the  general  railway  acts.  London  &  Northwestern  Railway 
Co.  V.  Ackroyd,  8  Jur.  n.  s.  911. 

10  Whitman  r.  Bo.ston  &  iNIaine  Railroad  Co.,  3  Allen,  133.  Thi.s  written 
contract  might  be  evidence  of  the  value  of  the  land,  or  an  admission  by  the 
owner,  and  as  such  might  probably  be  used  in  the  proceedings  under  the 
statute  for  estimating  damages. 


(Ji)  An  agreement  to  release  and  con- 
vey a  right  of  way  over  any  of  the  lands 
of  the  promisor  as  soon  as  the  road  is 
located,  is  a  bar  to  a  claim  for  dam- 
ages. Conwell  V.  Springfield  &  North- 
western Railroad  Co.,  81  111.  232.  Rut 
otiierwise,  of  an  agreement  to  give  a 
right  of  way  on  performance  of  a  cer- 
tain condition,  the  agreement  being 
delivered  in  escrow  but  returned  on 
failure  of  the  company  to  comply. 
Ilibbs  V.  Chicago  &  Southwestern  Rail- 
way Co.,  39  Iowa,  310. 

As  to  estoppels  upon  the  land-owner, 
the  company  having  entered  and  made 


improvements,  see  New  Jersey  Midland 
Railway  Co.  v.  Van  Syckle,  37  N.  J. 
Law,  49G;  Rockford,  Rock  Island,  & 
St.  Louis  Railroad  Co.  v.  Shunick,  (Jo 
111.  223.  The  measure  of  damages  is 
•the  value  of  the  land  as  it  was  before 
improvements  were  made.  Emer- 
son V.  Western  Union  Railroad  Co., 
75  111.  176;  North  Ilud.son  County 
Railroad  Co.  t'.  Booraeni,  28  N.  J.  Eq. 
450. 

As  to  the  removal  of  buildings  as  a 
consideration  for  an  agreement  to  con- 
vey, see  Detroit  Hillsdale,  &  Indiatui 
Railroad  Co.  v.  Forbes,  30  Mich.  1U5. 

r*2221 


228 


RIGHT   OF   WAY   BY   GRANT. 


[part   III. 


♦SECTION   11. 


Specific  Performance  in  Equity. 


1.  Contracts   before  and  after  date  of 

charter. 

2.  Contracts,  all  the  terms  of  which  are 

not  defined. 

3.  Contracts  by  which  an  umpire  is  to  fix 

price. 

4.  Right  to  mandamus  as  aff'ecting  the 

remedy. 

5.  Contracts  not  signed  by  company. 

6.  Contracts  of  which  terms  are  uncertain. 

7.  Contracts    giving    the    company    an 

option. 
8   Contracts    not    understood    by    both 
parties. 


9.  Order  in  regard  to  construction  of 
highways  may  be  enforced  at  the 
suit  of  the  municipality. 

10.  Courts  sometimes  decline  to  decree 

specific  performance  on  the  ground 
of  public  convenience. 

11.  Specific    performance    not    decreed 

when  contract  vague  and  uncer- 
tain, and  for  other  reasons. 

12.  Courts  of  equity  will  not  in  the  final 

decree  make  the  price  a  cliarge  on 
the  land,  unless  so  declared  at 
first. 


§  62.  1.  There  can  be  no  doubt  courts  of  equity  will  decree 
specific  performance  of  contracts  for  land,  made  by  consent  of 
the  owners,  as  well  after  the  act  of  parliament  as  before.^  (a) 

2.  If  the  agreement  contains  provisions  for  farm-crossings, 
fences,  and  cattle-guards,  either  express  or  implied,  the  master 
will  be  directed  to  make  the  proper  inquiry,  and  any  decree  for 
specific  performance  should  provide  minutely  for  all  such  inci- 
dents.2  But,  upon  general  principles,  if  the  agreement  provide 
that  the  price  of  land  is  to  be  fixed  by  an  arbitrator  or  umpire,  it 
has  generally  been  held  that  a  suit  for  specific  performance  is  not 
maintainable.^  (h) 

^  Supra,  §  13,  et  seq.;  Walker  v.  Eastern  Counties  Railway  Co.,  5  Railw.  Cas. 
469;  s.  c.  6  Hare,  591. 

2  Sanderson  v.  Cockerniouth  &  Workington  Railway  Co.,  19  Law  J.  Ch. 
503;  11  Bear.  497. 

3  Milnes  v.  Gery,  14  Ves.  400.  But  in  this  case  the  umpire  was  not  agreed 
on,  and  the  court  held  that  it  could  not  appoint  one.  But  the  Master  of  the 
Rolls  held  that  an  agreement  to  sell,  at  a'  fair  valuation,  might  be  executed. 
See  Tillett  v.  Charing  Cross  Bridge  Co.,  2G  Beav.  419;  s.  c.  5  Jur.  n.  s.  994. 


(rz)  Chicago  &  Southwestern  Rail- 
road Co.  V.  Swinney,  38  Iowa,  182. 
But  see  Gooday  v.  Colchester  &  Stour 
Valley  Railway  Co.,  15  Eng.  L.  &  Eq. 
596.  It  is  no  defence  to  a  bill  for 
specific  performance  that  the  time  for 

[*223J 


a  compulsory  taking  has  elapsed. 
Webb  V.  Direct  London  &  Portsmouth 
Railway  Co.,  5  Eng.  L.  &  Eq.  151. 

(J))  Where  an  estimate  of  certain 
expenses  was  to  be  submitted  to  tlie 
land-owner's  agent  for   his  approval, 


§  G2.]  SPECIFIC    PERFORMANCE    IX    EQUITY.  220 

3.  But  if  the  arbitrator  have  acted  and  fixed  Iho  price,*  and  Ijv 
parity  of  reason,  if  the  umpire  is  named  and  ready  to  act,  thci'e 
being  no  i)0\ver  of  revocation,  a  court  of  equity  may  decree  8pe- 
citic  performance.  Hence  in  the  case  above,  the  Vice-Chancel  lor 
held,  that,  as  the  contract  was  to  take  the  land  on  the  terms  pre- 
scribed in  the  act  of  parliament,  the  court  had  the  means  of 
*  applying  those  terms,  so  as  to  get  at  the  price,  and  might  there- 
fore recpiire  the  party  to  put  them  in  motion,  and  then,  in  its  dis- 
cretion, decree  specific  performance. 

4.  And  the  consideration,  that  possibly  the  party  might  proceed 
by  mandamus,  will  not  deprive  hiin  of  this  remedy  in  eciuity,  un- 
less the  act  specially  provides  the  remedy  iiy  mandamus.^ 

5.  But  if  the  company  take  a  bond  of  a  land-owner,  to  convey 
so  much  land  as  they  shall  require,  and  subsequently  appropri- 
ate the  land,  but  decline  accepting  a  deed  and  paying  the  price, 
equity  will  not  decree  specific  performance  of  the  contract,  the 
bond  not  being  signed  by  the  company.*^  But  in  such  a  case  h\)C- 
cific  performance  will  be  decreed  against  the  party  signing  the 
bond  upon  refusal.'^  (c) 

6.  A  contract  to  sell  a  railway  company  "  the  land  they  take  " 
from  a  si)ecified  lot  of  land,  at  twenty  cents  a  foot,  "  for  each  and 
every  foot  so  taken  by  said  com[)any,"  imports  a  taking  by  the 
company,  under  their  compulsory  powers.,  and  will  not  be  specifi- 
cally enforced  until  so  taken  by  the  couqiany.  And  if  the  terms 
of  a  contract  are  doubtful,  a  court  of  equity  will  not  decree  spe- 
cific performance.^ 

*  Brown  v.  Bellows,  4  Pick.  179.  ^   Hodges  Railw.,  189. 

«  Jacobs  V.  Peterborough  &  Shirley  Railway  Co.,  8  Cush.  1223. 

T   Parker  v.  Perkins,  8  Cush.  318. 

»  Boston  &  ISIaine  Railroad  Co.  v.  Bahcock,  3  Cush.  228;  s.  c.  1  Am.  Railw. 
Cas.  561.  But  under  a  contract  with  a  railway  company,  giving  it  all  the  land 
it  desires  not  exceeding  four  poles  in  width,  on  wliich  to  construct  its  road, 
"  provided  said  road  shall  not  run  fartiier  north  of  my  southwest  corner  than 
ten  feet,  and  not  farther  south  of  my  northeast  corner  than  110  feet,"  it  was 

and  he  died  before  the  submission  was  for  more  land  than  the  company  wa.s 

made,  it  was  held  that  the  submission  empowered  to  piuchase,  the  puroha.>^e 

was  of  the  e.ssence  of  the  agreement,  having  been  made  by  another  at  the 

and  specific  performance  was  refused,  procurement  of  the  company,  the  noni- 

Firth  r.  INIidland  Railway  Co.,  Law  inal  purchaser  is  a  necessary  party. 

Rep.  20  Eq.  100.  Pennsylvania  &  New  England  Railroad 

((•)   To  a  bill  to  enforce  a  contract  Co.  v.  Ryerson,  36  X.  J.  Fa].  112. 

[*224] 


230  RIGHT  or  WAY  BY  GRANT.  [PART  III. 

7.  Where  one  contracts  with  a  railway  company,  under  seal,  to 
permit  them  to  construct  their  road  over  his  land,  in  either  one 
of  two  routes,  and  to  convey  the  land  after  the  road  shall  be  defm- 
itively  located,  with  a  condition  that  the  deed  shall  be  void,  when 
the  road  shall  cease  or  be  discontinued,  if  the  company  take  the 
land  and  build  their  road  upon  it,  specific  performance  will  be 
decreed,  although  the  company  did  not  expressly  bind  themselves 
to  take  the  land,  or  pay  for  it.  And  where  the  company  had 
been  in  the  use  of  the  land  for  their  road  three  or  four  years,  it 
was  held  no  such  unreasonable  delay  as  to  bar  the  relief  *  sought. 
The  party  cannot  excuse  himself  by  showing,  that,  from  his 
own  notions,  or  the  representations  of  the  company,  or  of  third 
persons,  he  was  induced  to  believe  that  a  different  route  would 
have  been  adopted  by  the  company,  or  that  there  was  an  inad- 
equacy in  the  price  stipulated,  unless  it  be  so  gross  as  to  amount 
to  presumptive  evidence  of  fraud  or  mistake.^ 

8.  But  it  is  a  good  defence,  in  such  case,  that  the  party  was  led 
into  a  mistake,  without  any  gross  laches  on  his  part,  by  an  un- 
certainty or  obscurity  in  the  descriptive  part  of  the  agreement,  so 
that  it  applied  to  a  different  subject-matter  from  that  which  he 
understood  at  the  time,  or  that  the  bargain  was  hard,  unequal, 
or  oppressive,  and  would  operate  in  a  manner  different  from  that 
which  was  in  the  contemplation  of  the  parties  when  it  was  ex- 
ecuted. But  in  such  case  the  burden  of  proof  is  upon  the  defend- 
ant, to  show  mistake  or  misrepresentation.^  In  an  English  case^*^ 
before  the  Court  of  Chancery  Appeal,  after  elaborate  argument, 
the  Lord  Justice  Knight  Bruce,  an  equity  judge  of  the  most 

held  the  company  had  a  right  to  GO  feet  through  the  whole  land,  and  was  only 
restricted  in  relation  to  the  distance  the  road  went  from  the  corners  named. 
Lexington  &  Ohio  Railroad  Co.  v.  Ormsby,  7  Dana,  276. 

'  Western  Railroad  Co.  v.  Babcock,  6  Met.  346;  s.  c.  1  Am.  Railw.  Caa. 
365.  The  delivery  of  a  deed  to  the  agent  of  a  corporation,  in  such  case,  is 
sufficient.  And  where  the  party,  in  disregard  of  his  contract,  obtains  an 
assessment  of  damages,  under  the  statute,  his  liability  on  the  contract  is,  to  the 
difference  between  the  appraisal  and  the  stipulated  price  in  the  contract.  Un- 
reasonable delay  is  ordinarily  a  bar  to  specific  performance  in  a  court  of 
equity.  Guest  v.  Homfray,  5  Ves.  818;  Hertford  v.  Boore,  Aston  v.  Same, 
5  Ves.  719;  Watson  v.  Reid,  1  Russ.  &  M.  236;  2  Story  Eq.  Jur.  §§  771,  777, 
and  cases  cited. 

10  Wycombe  Railway  Co.  v.  Douniugton  Hospital,  Law  Rep.  1  Ch.  Ap.  268; 
8.  c.  12  Jur.  N.  s.  347. 
[*225] 


§  Gli.]  SPECIFIC   PERFORMANCE   IN    EQUITY.  231 

extended  Icarnini^  and  cxperienco,  tlius  states  the  rule  ujxjn  this 
point:  This  court  will  not  enforce  specific  j)erforn)ance  of  a  cou- 
tract,  where  the  defendant  proves  that  he  understood  it  in  a  sense 
difi'erent  from  the  phiintiff,  even  although  the  phiintilFs  construc- 
tion may  be  the  plain  meaning  of  the  contract. 

9.  Where  the  count}'  commissioners  made  order  in  regard  to  the 
mode  of  construction  of  a  railway,  in  crossing  a  higliway,  it  was 
held,  that  the  mayor  and  aldermen  of  a  city,  or  the  selectmen 
of  a  town,  arc  the  only  proi)er  parties  to  a  bill  for  specific  per- 
formance, and  that  the  owners  of  the  land,  over  wliich  tlie  railway 
l)asses,  are  not  to  be  joined  in  the  bill.^^     But  where  the  *  order 

"  Biainard  v.  Connecticut  River  Railroad  Co.,  7  Cush.  50G.  In  Roxbiiry  f- 
Boston  &  Providence  Railroad  Co.,  G  Cush.  4"J4,  it  was  also  held  that  the  coni- 
Hjlssioners  must  make  such  order  specific,  and  not  in  the  alternative,  ami 
that  laches,  in  regard  to  such  order,  will  not  defeat  the  claim  for  a  decree  for 
specific  performance,  where  public  security  is  essentially  concerned. 

And  courts  of  equity  have  held  a  parol  license  to  erect  public  works  irrevo- 
cable, the  works  being  erected  in  faith  of  it,  and  the  company  entitled  to  hold 
the  land  on  making  compensation,  and  have  virtually  decreed  specific  per- 
formance. Trenton  Water-Power  Co.  v.  Chambers,  1  Stock.  Ch.  471.  See 
also  Hall  v.  Chaffee,  1:5  Vt.  1-30;  Boston  cSc  IMuine  Railroad  Co.  v.  Bartlctt,  3 
Cush.  221.  But  it  is  held  that  an  action  for  the  price  of  land  will  not  lie  ou 
a  parol  contract  of  sale,  where  there  has  been  no  conveyance  of  the  land, 
although  the  company  has  taken  possession  and  paid  part  of  the  price.  Rey- 
nolds I'.  Dunkirk  &  State  Line  Railroad  Co.,  17  Barb.  G12.  This  is  un- 
doubtedly according  to  the  generally  recognized  rule  on  the  subject,  in  those 
states  where  the  Statute  of  Frauds  is  in  force. 

In  Laird  r.  Birkenhead  Railway  Co.,  6  Jur.  n.  s.  1 10;  s.  c.  1  Johns.  Ch. 
Eng.  500,  the  question  of  an  estoppel  in  fact  becoming  so  fixed  on  a  railway 
company  by  acquiescence  as  to  be  enforced  by  a  court  of  equity,  is  discussed 
by  Vice-Chancellor  Wood,  and  placed  on  higher  and  sounder  grounds  than  in 
most  of  the  earlier  cases.  The  plaintiff,  by  parol  agreement  with  the  company, 
built  a  tunnel  through  the  company's  land  in  order  to  facilitate  access  to  hi.s 
business,  laid  rails,  and  used  the  same  for  two  years,  paying  tolls  as  agreed. 
The  company  then  claimed  that  the  plaintiff  was  merely  a  tenant  at  will,  and 
subject  to  dictation  as  to  the  right  to  use  and  the  terms  on  which  he  might 
use  the  works,  and  gave  notice  in  writing  of  the  immediate  and  absolute 
termination  of  the  contract,  and  in  pursuance  of  such  notice  removed  the  rails 
and  permanently  erected  a  board  across  the  passage.  The  learned  judge  said, 
it  must  be  inferred,  from  the  nature  of  the  transaction,  and  after  all  that 
expense,  that  it  was  not  to  be  determined  by  three  months'  notice;  that  the  ne- 
cessary inference  was  that  there  was  to  be  a  right  of  user  a.s  long  as  the  plaintiff 
was  the  owner  of  the  yard.  It  was  further  considered  that,  aside  from  the 
actual  use,  a  court  of  equity  would  have  decreed  specific  performance  on 
reasonable  terms;  and  that  after  use  for  a  considerable  term  on  th'' basis  of 

[*::2t)] 


232  RIGHT   OF   WAY   BY   GRANT.  [PART   III. 

required  the  highway  to  be  so  raised  as  to  pass  over  the  railway, 
at  a  place  named,  but  without  defining  the  height  to  which  it 
should  be  raised,  the  grade,  the  nature  of  the  structure,  or  the 
time  within  which  it  should  be  made,  it  was  held  too  indefinite  to 
justify  a  decree  for  specific  performance.^^ 

*  10.  The  Master  of  the  Rolls,  Lord  Roimilly,  in  Raphael  v. 
Thames  Valley  Railway ,i^  held,  that  in  deciding  whether  specific 
performance  sliould  be  enforced  against  a  railway  company,  the 
court  must  have  regard  to  the  interests  of  the  public,  and  there- 
fore, where  a  bridge  had  not  been  constructed  in  conformity  with 
an  agreement  with  a  land-owner,  but  the  injury  to  the  land-owner 
was  small,  and  the  railway  had  since  been  opened  for  trafhc,  and 
the  relief,  if  granted,  would  have  necessitated  an  interference  with 
the  traffic,  the  court  refused  to  compel  specific  performance. 

11.  And  it  has  been  more  recently  declared  by  the  English 
courts  of  equity,  that  where  a  contract  is  vague  and  so  uncertain 
that  no  compensation  could  be  awarded,  a  decree  for  specific  per- 
formance could  not  be  made.^*  So  also  the  court  will  not  inter- 
fere after  considerable  lapse  of  time  and  when  the  company  are 
not  possessed  of  funds  for  completing  the  purchase.^^  So  refusal 
to  decree  specific  performance  may  be  based  upon  the  public  safety 
and  convenience.^^ 

12.  And  a  Court  of  Equity  will  not  make  the  amount  to  be  paid 
for  land  a  charge  upon  the  land,  under  leave  to  apply  for  further 
directions,  where  it  was  not  made  so  by  the  original  decree.^" 

an  unsigned  memorandum,  the  court  would  regard  that  as  evidence  of  the 
ultimate  agreement  of  the  parties,  s.  p.  Mold  c.  Wheatcroft,  27  Beav.  510. 
But  the  railway  companies  of  a  sovereignty  so  far  represent  or  partake  of  the 
prerogative  character,  that  any  acquiescence  on  their  part  in  a  use  of  their 
lands,  inconsistent  with  the  permanent  rights  of  the  public,  will  be  construed 
as  merely  temporary,  and  will  create  no  permanent  rights  in  the  party  exer- 
cising such  use.  Heyl  v.  Philadelphia,  Wilmington,  &  Baltimore  Railroad 
Co.,  51  Penn.  St.  4G9. 

^2  lloxbury  r.  Boston  &  Providence  Railroad  Co.,  2  Gray,  IGO. 

"  Law  Rep.  2  Eq.  37;  s.  c.  12  Jur.  x.  s.  656. 

"  Tillett  V.  Charing  Cross  Bridge  Co.,  26  Beav.  419;  s.  c.  5  Jur.  n.  s.  994. 

^5  Pryse  x\  Cambrian  Railway  Co.,  Law  Rep.  2  Ch.  Ap.  444. 

'8  Raphael  v.  Thames  Valley  Railway  Co.,  Law  Rep.  2  Eq.  444. 

"  Attorney-General  i'.  Sittingbourne  &  Sheerness  Railway  Co.,  Law  Rep. 
1  Eq.  636. 

[*227] 


§  G3.]  GENERAL   rUINCIPLES.  233 


♦CHAPTER  XI. 

EMINENT   DOMAIN. 

SECTION     I. 

General  Princijjles. 


1.  Definition  of  the  right. 

2.  Distinguislicd  from  the  ordinary  pro- 

prietiiry  right  of  the  sovereign. 

3.  Necessary  attribute  of  sovereignty. 

4.  Antiquity  of  its  recognition. 

5.  Limitations  upon  its  exercise. 


0.  ■Resides  principally  in  the  states. 

7.  Duty  of  making  compensation. 

8.  Kiglit  to   regulate   use    of  navigable 

waters. 
0,  10,  11.  Its   exercise    in    rivers,   above 
tide-water. 


§  63.  1.  Tins  title  is  very  little  found  in  the  Enp:li.sli  books, 
and  scarcely  in  the  English  dictionaries.  Ihit  with  iis,  it  has 
been  adopted  from  the  Avriters  on  national  and  civil  law,  iii)on  lln* 
continent  of  Europe,^  and  is  perhaps  better  understood  than 
almost  any  other  form  of  expression,  for  the  same  idea.  It  is 
defined  to  be  that  dominium  eminens,  or  superior  right,  which  of 
necessity  resides  in  the  sovereign  power,  in  all  governments,  to 
apply  private  property  to  public  use,  in  those  great  public  emer- 
gencies which  can  reasonably  be  met  in  no  other  way. 

2.  It  is  a  distinct  right  from  that  of  public  domain,  which  is 
the  ^  land  belonging  to  the  sovereign.  This  is  a  superior  right 
which  the  sovereign  possesses  in  all  property  of  the  citizen  or 
snbject,  whether  real  or  personal,  and  whether  the  title  were 
originally  derived  from  the  sovereign  or  not.  -One  of  the  cliief 
occasions  for  the  exerei.se  of  this  right  is,  in  creating  the  necessary 
facilities  for  intercommunication,  which  in  this  country  is  now- 
very  generally  known  by  the  name  of  Internal  lm|trovcmcnt. 
This  extends  to  the  construction  of  highways  (of  which  tiun- 
Jiikcs  and  railways  arc,  in  some  respects,  but  diflVrcnt  modes  of 
construction  and  maintenance),  canals,  ferries,  wharves,  basins. 
and  some  others.^ 

1  Vatt.  B.  1,  c.  20,  §  211;  Code  Nap.  B.  2,  tit.  2,  515;  1  Bl.  Com.  139; 
Gardner  r.  Newbur^h,  2  Johns.  Ch.  102;  2  Dallas,  310. 

2  3  Kent  Com.  339  ct  seq.  and"iiote.s;  Beekman  v.  Saratoga  &  Sclienectady 
Railroad  Co.,  3  Baige,  -15,  73;  12  Pick.  467;  23  Pick.  327;  3  Seld.  3U.     This 

[•228] 


234  EMINENT   DOMAIN.  [PART   m. 

*  3.  This  is  a  right  in  the  sovereignty,  which  seems  indispen- 
sable to  the  maintenance  of  civil  government,  and  which  seems  to 

right,  as  some  of  the  above  cases  show,  extends  to  numerous  matters  not 
named  in  the  text,  but  it  would  be  out  of  place  here  to  enter  into  the  discus- 
sion of  the  general  subject.  The  indispensable  prerequisites  to  the  exercise 
of  the  right  will  appear,  as  far  as  they  apply  to  the  subject  of  this  work, 
in  the  following  sections. 

That  railways  are  but  improved  highways,  and  are  of  such  public  use  as  to 
justify  the  exercise  of  the  right  of  eminent  domain,  by  the  sovereign,  in  their 
construction,  is  now  almost  universally  conceded.  Williams  v.  New  York  Central 
Railroad  Co.,  18  Barb.  222,  2i6;  State  v.  Rives,  5  Ire.  297;  Northern  Railroad 
Co.  V.  Concord  &  Claremont  Railroad  Co.,  7  Fost.  N.  11.  183;  Bloodgood  v.  Mo- 
hawk &  Hudson  Railroad  Co.,  18  Wend.  9;  s.  c.  14  Wend.  51;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  209;  1  Bald.  2U5.  See  also  3  Paige,  73;  3  Seld.  314;  Don- 
naher  v.  State,  8  Sm.  &  M.  649.  A  freight  company  has  been  regarded  as  not 
of  such  public  interest  as  to  justify  taking  land  by  the  right  of  eminent  domain. 
This  was  for  loading  and  unloading  freight.  Memphis  Freight  Co.  v.  Memphis, 
4  Cold.  419.  But  this  case  is  perhaps  questionable.  A  railway  for  the  purpose 
of  transporting  freight  is  as  much  for  a  public  use  as  one  also  for  the  transpor- 
tation of  passengers.  And  a  freight  company  of  more  limited  extent  miglit 
be  said  to  be  in  aid  of  the  company  carrying  greater  distances.  The  marginal 
railways  in  cities  for  the  purpose  of  connecting  the  different  lines  of  traffic,  are 
as  much  public  companies  entitled  to  exercise  the  sovereign  right  of  eminent 
domain,  as  any  other  railway.  But  no  railway  company  can  take  land  for 
other  than  public  uses,  as  for  the  deposit  of  dirt,  &c.,  not  connected  with  the 
efficient  use  of  its  right  of  way.     Lance's  Appeal,  55  Penn.  St.  IG. 

It  seems  to  be  well  settled,  that  the  legislature  has  no  power  to  take  the 
property  of  the  citizens  for  any  but  a  public  use  but  that  a  railway  is  such  use. 
Bradley  v.  New  York  &  New  Haven  Railroad  Co  ,  21  Conn.  294;  Symouds  v. 
Cincinnati,  14  Ohio,  147;  Embury  v.  Conner,  3  Comst.  511. 

But  this  is  a  power  essentially  different  from  that  of  taxation,  in  regard  to 
which  there  is  no  constitutional  restriction,  and  no  guaranty  for  its  just  exercise, 
except  in  the  discretion  of  the  legislature.  People  v.  Brooklyn,  4  Comst.  419; 
Cincinnati,  Wilmington  &  Zainesville  Railroad  Co.  v.  Clinton  County  Com- 
missoners,  1  Ohio  St.  77. 

The  legislature  must  decide,  in  the  first  instance,  when  the  right  of  eminent 
domain  may  be  exercised,  but  this  is  subject  to  the  revision  of  the  courts,  so  far 
as  the  uses  to  which  the  property  is  applied  are  concerned.    2  Kent  Com.  340. 

But  as  to  the  particular  instance,  the  decision  of  the  legislature,  and  of  the 
commissioners  ai^pointed  to  exercise  the  power,  is  ordinarily  final  and  not  re- 
visable  in  the  courts.  Varrick  v.  Smith,  5  Paige,  137;  Armington  v.  Barnet, 
15  Vt.  745. 

And  the  legislature  may  restrain  the  owners  of  property,  in  rejjard  to  its 
use,  when  in  their  opinion  the  public  good  requires  it,  unless  with  compensa- 
tion to  those  injured,  as  this  is  not  the  exercise  of  the  right  of  eminent  domain. 
Commonwealth  v.  Tewksbury,  11  Met.  55;  Coates  v.  New  York,  7  Cow.  585. 
But  see  Clark  v.  Syracuse,  13  Barb.  32. 
r*229] 


§  G3.]  GENERAL   PRINCIPLES.  235 

*  be  rather  a  necessary  attribute  of  the  sovereicrn  power  in  a  htaic, 
than  any  reserved  right  in  the  grant  of  property  to  the  subject  or 
citizen. 

4.  It  seems  to  have  been  accurately  defined,  and  distinctly 
recognized,  in  the  Roman  empire,  in  the  days  of  Augustus  and 
his  immediate  successors,  although,  from  considerations  of  policy 
and  personal  influence  and  esteem,  they  did  not  always  choose  to 
exercise  the  right  to  demolish  the  dwellings  of  the  inhabitants, 
cither  in  the  construction  of  public  roads  or  aqueducts,  or  orna- 
mental columns,  but  to  purchase  the  right  of  way. 

5.  But  in  the  states  of  Europe  and  in  the  written  Constitution 
of  the  United  States,  and  in  those  of  most  of  the  American  states, 
an  express  limitation  of  the  exercise  of  the  right  makes  it  dei)end- 
ent  upon  compensation  to  the  owner.^  But  this  provision  in  the 
United  States  Constitution  is  intended  only  as  a  limitation  upon 
the  exercise  of  that  power,  by  the  government  of  the  United 
States.3 

6.  And  it  would  seem  that  notwithstanding  this  right  of  sov- 
ereignty may  reside  in  the  United  States,  as  the  paramount  sov- 
ereign, so  far  as  the  territories  are  concerned,  in  reference  to 
internal  communication,  by  highways  and  railways,  and  notwith- 
standing the  ownership  of  the  soil  of  a  portion  of  the  lands,  by  the 
United  States,  in  many  of  the  states,  as  well  as  territories,  still, 
when  any  of  the  territories  are  admitted  into  the  Union,  as  imle- 
pcndcnt  states,  the  general  rights  of  eminent  domain  are  vested 
exclusively  in  the  state  sovereignty.* 

7.  The  duty  to  make  compensation  for  property,  taken  for  pul)- 
lic  use,  is  regarded,  by  the  most  enlightened  jurists,  as  founded  in 
the  fundamental  principles   of  natural   right  and  justice,  and  as 

»  Rarron  v.  Baltimore,  7  Pet.  213;  Fox  v.  Ohio.  5  How.  110,  431.  135. 

*  Pollard  V.  Ila-an,  3  How.  212;  Goodtitle  v.  Kibbe,  9  How.  471;  Doe  r. 
Beebo,  13  How.  2.");  United  States  v.  Railroad  Bridge  Co.,  (5  McLean,  517. 
In  Illinois  Central  Railway  v.  United  States,  20  Law  Rep.  G3U,  the  court  of 
claims  held,  that  the  abandonment  of  a  military  reserve,  which  had  become 
useless  for  military  purposes,  causes  it  to  fall  back  into  tlie  general  ma.s3  of 
public  lands,  and  that  a  state,  by  virtue  of  its  right  of  eminent  domain,  may 
authorize  the  construction  of  railways  through  land  owned  but  not  occupied 
by  the  United  States.  And  tlie  United  States  being  in  possession  of  land 
owned  by  the  plaintiff,  necessary  to  carry  out  the  objects  of  its  charter,  it  was 
held,  that  a  payment  made  by  the  plaintiff,  to  obtain  possession  thereof,  w-is 
made  under  duress,  and  might  be  recovered  back. 

[*230] 


236  EMINENT   DOMAIN.  [PART   III. 

*  lying  at  the  basis  of  all  wise  and  just  government,  independent 
of  all  written  constitutions  or  positive  law.^ 

8.  But  the  public  have  a  right,  by  the  legislature,  through  the 
proper  functionaries,  to  regulate  the  use  of  navigable  waters ;  and 
the  erection  of  a  bridge,  with  or  without  a  draw,  by  the  authority 
of  the  legislature,  is  the  regulation  of  a  public  right  and  not  the 
deprivation  of  a  private  right,  which  can  be  made  the  ground  of 
an  action,  even  where  private  loss  is  thereby  produced,  nor  is  it 
the  taking  of  private  property  for  public  use  which  will  entitle 
the  owner  to  compensation.^ 

9.  And  where  a  ford-way  was  destroyed  by  the  erection  of  a 
dam  across  a  river,  in  the  construction  of  a  canal  or  other  public 
work,  under  legislative  grant,  the  river  being  a  public  highway, 
although  not  strictly  navigable,  in  the  common-law  sense  (which 
only  included  such  rivers  as  were  affected  by  tide-water),  it  was 
held  the  owner  of  the  ford-way  could  recover  no  compensation 
from  the  state,  or  their  grantees,  the  act  being  but  a  reasonable 
exercise  of  the  right  to  improve  the  navigation  of  the  stream  as 
a  public  highway." 

10.  Neither  can  the  owner  of  a  fishery,  which  sustains  damage 
or  destruction  Ijy  the  building  of  a  dam  to  improve  the  navigation 
of  a  river  above  tide-water,  under  grant  from  the  state,  sustain  an 
action  against  the  grantees.^  So  also  in  regard  to  the  loss  of  the 
use  of  a  spring,  by  deepening  the  channel  of  such  a  stream,  by 
legislative  grant.^ 

11.  Nor  is  the  owner  of  a  dam,  erected  by  legislative  grant 
upon  a  navigable  river,  and  which  was  afterwards  cut  off  by 
a  canal,  granted  by  the  same  authority,  entitled  to  recover 
damages.^^ 

s  Spencer,  C.  J.,  in  Bradshaw  v.  Rodgers,  20  Johns.  103;  2  Kent  Com. 
339,  and  note,  and  cases  cited  from  the  leading  continental  jurists. 

^  Davidson  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  91 ;  Gould  v.  Hudson 
River  Railroad  Co.,  12  Barb.  616;  s.  c.  2  Seld.  522.  Nor  has  the  state  any 
such  right  in  flats,  where  the  tide  ebbs  and  flows,  as  to  require  a  railway  com- 
pany  to  pay  damages  for  the  right  of  passage.  Walker  v.  Boston  &  Maine 
Railroad  Co.,  3  Cush.  1 ;  s.  c.  1  Am.  Railvv.  Cas.  462. 

'  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  346. 

8  Shrunk  v.  Schuylkill  Navigation  Co.,  14  S.  &  R.  71. 

5  Commonwealth  v.  Ritcher,  1  Penn.  467. 

10  Susquehannah  Canal  Co.  v.  Wright,  9  Watts  &  S.  9;  Monongahela  Nav- 
igation Co.  V.  Coons,  6  Watts  &  S.  101. 
[*231] 


§  G4.] 


TAKING   LANDS   IN    INVITUM. 


237 


♦SECTION    II. 


Taking  Lands  in  Inv'itum. 


1.  Legislative  grant  requisite  to  compul- 

sory taking. 

2.  Compoiisation  must  be  made. 

S.  Consequential     damages.        Whether 
paid  for. 

4.  E.\tent  of  liability   for  consequential 

damages. 

5,  8,  9.  (i rants  of  such  powers  strictly  but 

reasonably  construed. 


G.  Limitation    of    the    power    to    take 

lan<ls. 
7.  Interference  of  courts  of  equity. 
10.  Kights  ac(iuired  by  company.     Right 

to  enter  without  process, 
n.  Riglits  limited  by  the  grant. 
12.  Rights  of  municipal  corporation  more 
extensive. 


§  64.  1.  In  England  raihvays  can  take  lands  by  CDHipulsion, 
only  in  conformity  to  the  terms  of  their  charters  and  the  general 
laws  defining  their  powers.^  (a)     And  in  tlii.s  country  a  railway 

1  Taylor  v.  Clemson,  2  Q.  B.  978;  s.  c.  3  Railw.  Cas.  Go.  Tixdal,  C.  J., 
here  said,  that  authoiity  to  take  land,  if  exercised  adversely,  and  not  by  con- 
sent, was  undoubtedly  an  authoi'ity  to  be  carried  into  effect  by  means  unknown 
to  the  coninion  law.  And  in  IJarnard  v.  Wallis,  2  Railw.  Cas.  177,  tlie  Master 
of  the  Rolls  declares,  that  aside  from  the  provisions  of  the  act  of  parliament, 
the  owner  of  one  rod  of  land  may  insist  on  his  own  terras,  to  the  utter  over- 
throw of  the  most  important  public  work.  All  kinds  of  property  and  estate 
are  subject  to  this  right  of  eminent  domain,  and  a  dwelling-house,  so  long  re- 
garded as  the  inviolable  sanctuary  of  the  owner  or  occupant,  forms  no  excep- 
tion. Wells  V.  Somerset  &  Kennebec  Railroad  Co.,  17  Me.  34.").  The  right  of 
compensation  for  i)roperty  taken  by  virtue  of  the  right  of  eminent  domain  is 
regarded  as  a  fundamental  piinciple  of  the  common  law  of  England  and  of  the 
other  European  nations.     runi[ielly  v.  Green  Bay  Co.,  13  Wal.  IGG. 


(a)  The  question  whether  the  right 
of  eminent  domain  shall  be  exercised 
is  a  matter  exclusively  of  legislative 
and  not  of  judicial  cognizance.  Chi- 
cago, Rock  Island,  &  Pacific  Rail- 
road Co.  V.  Lake,  71  111.  333;  United 
States  I'.  Oregon  Railway  &  Navigation 
Co.,  10  Fed.  Rep.  '/J-l.  So  of  the  ques- 
tion whether  in  the  exerci.se  of  that 
right  particular  property  shall  be 
taken.  Baltimore  &  Ohio  Railroad 
Co.  V.  Pittsburg,   Wheeling,  &  Ken- 


tucky Railroad  Co.,  17  W.  Va.  SI 2. 
The  right  lies  dormant  in  the  state 
until  the  legislature  in  some  way 
points  out  the  modes,  the  conditions, 
and  the  agencies  for  its  exerci.'^e.  Al- 
exandria &  Fredericksbiu-g  Railway 
Co.  )'.  Alexandria  &  Washington  Rail- 
road Co.,  75  Va.  780.  The  statutory 
mode  is  exclusive  of  all  otliers.  Inter- 
national &  Great  Xorthfrn  Raihv.ny 
Co.  r.  Benitos,  10  Am.  &  Eng.  Railw. 
Cas.   122;    Cairo   &  Fult<m    Railroad 

[•232] 


238  EMINENT    DOiMAIN.  [PART   III, 

company  or  other  corporation  must  show,  not  only  the  express 
warrant  of  the  legislature  ^  (which  it  must  lor  all  its  acts)  for 
taking  the  land  of  others  for  tjieir  own  uses,  but  also  that  the 
legislature,  in  giving  such  warrant,  conformed  to  the  constitutions 
of  the  states,  in  most  of  which  it  is  expressly  required  that  com- 
pensation should  be  made  for  all  lands  taken.  (6)  And  upon 
this  subject,  the  circumspection  of  the  English  courts,  in  requiring 
damage  and  loss  to  the  land-owners  to  be  fairly  met,  is  shown 
very  fully  by  the  language  of  Lord  Chief  Justice  Denman  in  Tlie 
Queen  v.  The  Eastern  Counties  Railway.^ 

*  2.  "  We  think  it  not  unfit  to  premise,  that  when  such  large 
powers  are  intrusted  to  a  company  to  carry  their  works  into  exe- 
cution, without  the  consent  of  the  owners  and  occupiers  of  the 
land,  it  is  reasonable  and  just  that  any  injury  to  property  which 
can  be  shown  to  arise  from  the  prosecution  of  those  works  should 
be  fairly  compensated  for  to  the  party  sustaining  it."  (c) 

3.  In  the  English  statute,  too,  railway  companies  are  made  lia- 
ble to  pay  damage  to  the  owner  of  all  lands  "  injuriously  affected  " 
by  any  of  their  works.  Such  a  provision  does  not  exist  in  many 
of  the  American  states,  and  consequently  no  liability  is  imposed 

2  Hickok  V.  Plattsburgh,  15  Barb.  435;  4  Barb.  127;  Halstead  v.  Xew 
York,  3  Comst.  430;  Hart  v.  Albany,  9  Wend.  571,  5SS;  2  Denio,  110;  Dun- 
ham V.  Rochester,  5  Cow.  462. 

8  2  Q.  B.  347;  s.  c.  2  Railw.  Cas.  736,  752.  It  has  been  repeatedly  decided 
that  the  corporate  authorities  of  a  city  have  no  power  to  confer  on  any  person, 
natural  or  corporate,  the  franchise  of  operating  a  railway.  Such  a  grant  for 
an  indefinite  period  is  void  as  a  perpetuity.  Such  powers  are  held  by  the  city 
for  the  public  benefit,  and  cannot  be  abrogated  or  delegated.  And  such  a 
grant  is  not  an  act  of  nounicipal  legislation  merely,  but  a  contract  which,  if 
valid,  it  could  not  revoke  or  limit,  and  which  is  consequently  void  as  a  per- 
petuity.    Milhau  V.  Sharp,  27  N.  Y.  611;  infra,  §  76. 

Co.  V.  Turner,  31  Ark.  494  ;  Johnson  fully  organized  and  is  unable  to  agree 

V.  St.  Louis,  Iron  Mountain,  &  South-  with  the  property  owner  as  to  compen- 

ern  Railway  Co.,  32  Ark.  758.  sation.    A  railway  is  a  highway  within 

The  taking  of  land  for  a  railway  the  meaning  of  U.  S.  Rev.  Sts.  §  2477, 

is  an  appropriation  to  all  necessary  or  granting  the  right  of  way  across  the 

incidental  uses.     Cassidy  v.  Old  Col-  public  lands. 

ony   Railroad   Co.,  23   Am.   &   Eng.  (c)  Acceptance  of  damages  awarded 

Railw.  Cas.  83;  s.  c  24  Am.  &  Eng.  precludes  the  owner  from  making  fur- 

Railw.  Cas.  271.  ther  claim.     Baltimore  &  Ohio  Rail- 

(i)    So  it  must  show  that  it  has  road  Co.  v.  Johnson,  84  lud.  502. 
[*233] 


§  64.]  TAKING    LANDS    IN    INVITUM.  239 

for  merely  consequential  damages  to  lands,  no  part  of  which  in 
taken.*  (tZ) 

4.  Under  the  English  statute,  giving  damage  whore  lands  are 
"  injuriously  affected,"  railways  have  been  held  liable  for  all 
acts,  which,  if  done  without,  legislative  grant,  would  constitute 
a  nuisance,  and  by  which  a  particular  party  incurs  special 
damage.^ 

5.  These  grants,  being  in  derogation  of  common  right,  arc  to 
receive  a  reasonably  strict  and  guarded  construction.®  (<?)  The 
Master  *  of  the  Rolls,  in  this  last  case,  says,  "  In  these  cases  it  is 

*  Hatch  V.  Vermont  Central  Railroad  Co.,  2.j  Vt.  49;  Philadelphia  &  Tren- 
ton Railroad  Co.,  G  Whart.  25;  Monongahela  Xavigation  Co.  i'.  Coon,  G  Watts 
&  .S.  101.  See  also  Protzman  v.  Indianapolis  &  Cincinnati  Railroad  Co.,  9 
Ind.  467;  Evansville  &  Crawfordsville  Railroad  Co.  v.  Dick,  9  Ind.  43-3.  Rut 
the  full  extent  of  the  doctrine  in  the  text  seems  to  be  questioned  or  doubted 
in  Purapelly  v.  Green  Bay  Co.,    13  VVal.  166. 

*  (^iieen  c.  Eastern  Railway  Co.,  2  Q.  B.  347;  Glover  r.  North  Staffordshire 
Railway  Co.,  16  Q.  B.  912;  s.  c.  5  Eng.  L.  &  Eq.  3;?5.  The  English  rule  of 
compensation  seems  to  be  to  estimate  what  the  land-owner  will  lose  rather 
than  what  the  company  w  ill  gain.  Stebbing  i".  Metropolitan  Board,  Law  Rep. 
6  Q.  B.  37. 

®  Gray  r.  Liverpool  &  Bury  Railway  Co.,  9  Beav.  391;  s.  c  4  Railw.  Cas. 
235-240.  Hence  under  a  general  grant  of  power  to  take  land  for  the  track  of 
a  railway,  with  sidings  and  branches  to  the  towns  along  the  line,  the  company 
have  no  jxiwer  to  take  land  for  a  temporary  track  during  tlie  period  of  con- 
structing the  main  line.  Currier  v.  Marietta  &  Cincinnati  Railroad  Co.,  11 
Ohio  St.  228.  Nor  can  a  railway  company,  under  its  general  powers,  take 
lands  at  a  distance  from  its  line  not  intended  to  be  used  in  its  construction. 
Waldo  r.  Chicago,  St.  Paul,  &  Fond  du  Lac  Railroad  Co.,  14  Wis.  575.  Nor 
can  a  railway  company  take  land  compulsorily  for  the  purpose  of  erecting  a 
manufactory  of  railway  cars,  or  dwellings  to  be  rented  to  the  employes  of  the 
company.  But  it  may  take  land  for  the  purpose  of  storing  wood  and  lumber 
used  on  the  road,  or  brought  there  for  transportation  on  it.  And  when  land 
is  taken  for  a  legitimate  purpose,  the  decision  of  the  locating  officers  of  tlie 
company  is  conclusive  as  to  the  extent  required  for  that  purpose,  unless  the 
quantity  so  taken  is  clearly  beyond  any  just  necessity.  Vermont  &  Canada 
Railroad  Co.  v.  Vermont  Central  Railroad  Co.,  -W  Vt.  2. 

('/)  And  see  Iti  re  New  York  Cen-  (e)  Webb  v.  Manchester  &  Leeds 

tral   &   Hudson    River  Railroad  Co.,  Railway   Co.,    1    Eng.    Railw.    &  C. 

0  Hun,  149.     But  otherwise  by  statute  Cas.  576;    Southern   Pacific   Railroad 

iu  Pennsylvania.     See  Penn.  St.  Feb.  Co.  v.  Wilson,  49  Cal.    396;    Missis- 

19,    1849;     Iloffer    v.     Pennsylvania  sippi    River   Bridge  Co.  r.  Ring,   58 

Canal   Co.,   87    Penn.    St.    221.     See  Mo.   491;  Oregonian    Railw.ay  Co.  r. 

infra,  §  9.  Hill,  9  Oreg.  377. 

[♦234] 


240  EMINENT   DOMAIN.  [PART   III. 

always  to  be  borne  in  mind,  that  the  acts  of  parliament  are  acts  of 
sovereign  and  imperial  power,  operating  in  the  most  harsh  shape 
in  which  that  power  can  be  applied  in  civil  matters,  —  solicited, 
as  they  are,  by  individuals,  for  the  purpose  of  private  speculation 
and  individual  benefit."  And  in  another  case  "the  rule  of  con- 
struction is  thus  laid  down  :  — 

6.  "  These  powers  extend  no  further  than  expressly  stated  in 
the  act,  except  where  they  are  necessarily  and  properly  acquired 
for  the  purposes  which  the  act  has  sanctioned."  This  last  cate- 
gory, as  here  observed,  is  often  a  most  perplexing  one,  in  regard 
to  its  true  extent  and  just  limits.  And  doubtful  grants  are  to  be 
construed  most  favorably  towards  those  who  seek  to  defend  their 
property  from  invasion.^  And  a  railway,  having  an  option 
between  different  routes,  can  only  take  lands  on  that  route  which 
they  ultimately  adopt ;  and  if  they  contract  for  land  upon  the 
other  routes,  cannot  be  compelled  to  take  it.^  The  time  for  exer- 
cise of  these  compulsory  powers,  by  the  English  statutes,  is  limited 
to  three  years,i*^  except  for  improvements  necessary  for  the  public 
safety,  in  conformity  with  the  certificate  of  the  Board  of  Trade. 

It  was  decided  by  the  House  of  Lords,  reversing  the  judgment 
of  the  Lords  Justices,  but  affirming  that  of  the  yice-Chancellor, 
that  where  the  legislature  authorizes  a  railway  company  to  take, 
for  their  purposes,  any  lands  described  in  their  act,  it  constitutes 

'  Colman  v.  Eastern  Counties  Railway  Co.,  10  Beav.  1;  s.  c.  4  Railw.  Cas. 
513,  524;  State  v.  Baltimore  &  Ohio  Railroad  Co.,  6  Gill,  3G3;  Simpson  v. 
South  Staffordshire  Waterworks  Co.,  11  Jur.  n.  s.  453.  And  in  a  case  in 
Kentucky,  the  rule  is  thus  stated  :  The  rules  of  construction  which  apply  to 
charters  delegating  sovereign  power  to  corporations  do  not  depend  on  the 
question  whether  the  corf)oration  is  a  private  or  a  public  one,  but  on  the 
character  of  the  powers  conferred,  and  the  purposes  of  the  organization. 
The  power  of  a  railway,  or  other  private  corporation,  to  take  private  property 
for  its  use,  being  a  delegation  of  sovereign  power,  must  be  construed  as  it 
would  be  if  delegated  to  a  municipal  corporation.  And  the  powers  of  private 
and  public  corporations  with  respect  to  their  property,  are  governed  by  the 
same  principles,  and,  in  the  absence  of  express  provisions  of  law,  depend  upon 
the  purposes  for  which  the  coi-poration  was  formed.  Bardstown  &  Louisville 
Railroad  Co.  v.  Metcalfe,  4  Met.  Ky.  199. 

8  Sparrow  v.  Oxford,  Worcester,  &  Wolverhampton  Railway  Co.,  9  Hare, 
436;  8.  c.  12  Eng.  L.  &  Eq.  249;  Shelf.  Railw.  233. 

s  Tomlinson  v.  Manchester  &:  Birmingham  Railway  Co.,  2  Railw.  Cas.  101; 
Webb  V.  Manchester  &  Leeds  Railway  Co.,  1  Railw.  Cas.  576. 

10  Such  a  limitation  is  held  obligatory  wherever  it  exists.     Peavy  v.  Calais 
Railroad  Co.,  30  Me.  498;  s.  c.  1  Am.  Railw.  Cas.  147. 
[*234] 


§  04.]  TAKING    LANDS   IN    INVITUM.  241 

*  tlicni  (lie  sole  judges  as  lo  whctlier  tlioy  will  or  will  not  tako 
those  lands,  provided  that  they  take  them  hona  fide  with  the  pur- 
pose of  using  them  for  the  purposes  authorized  by  the  legislature, 
and  not  for  any  sinister  or  collateral  jmrpose.'^  And  that  a  court 
ol"  e(|uity  cannot  interfere,  even  upon  the  decision  of  an  engineer, 
to-curtail  (he  jtower  of  (he  company,  in  regard  to  the  quantitv  <jf 
land  sought  to  be  obtained  by  it,  so  long  as  it  acts  in  good  faith. 
But  in  a  later  case  ^^  it  was  said  that  the  House  of  Lords,  in  the 
ease  of  Stockton  &.  Co.  v.  Brown,  did  not  decide  (hat  (ho  conijianv, 
by  its  engineer,  had  an  unlimited  discretion  to  take  any  land 
which  the  engineer  would  make  affidavit  the  company  refpiired 
for  use  in  the  construction  of  their  works,  without  stating  what 
works ;  but  that  it  must  appear  to  what  use  they  proposed  to  put 
(he  lands,  and  if  that  came  fairly  within  the  range  of  their  powers, 
(lie  company  could  not  be  controlled  in  the  bona  fide  exercise  of 
its  discretion  as  to  the  mode  of  constructing  their  works,  within 
the  powers  confided  to  them  by  the  legislature.  The  company 
will  not  be  restrained  from  taking  land  for  the  purpose  of  de])osit- 
ing  waste  upon,  aKhough  not  confident  of  requiring  it  for  any 
odicr  purpose  connected  wi(h  (he  construction.^'^ 

7.  As  a  general  rule  in  (he  English  cour(s  of  equiiy,  if  (ho  con- 
struction of  a  railway  charter  be  doubtful,  (hoy  will  remit  (ho 
party  to  a  court  of  law  to  settle  the  right,  in  the  mean  time  so 
exercising  the  power  of  granting  temporary  injunctions  as  will 
best  conduce  to  the  preservation  of  the  ultimate  interests  of  all 
par(ios.'* 

8.  Similar  rules  of  construction  have  prevailed  in  the  courts  of 
this  country.  The  language  of  Taney,  C.  J.,  in  the  leading  case 
uj)on  this  subject,  in  the  national  tribunal  of  last  resort,  is  very 
explicit.  "  It  would  present  a  singular  spectacle,  if,  while  the 
courts  of  England  are  restraining  widiin  (he  strictest  limits  the 
spirit  of  monopoly  and  exclusive  i)riviloge  in  na(ure  of  monop((l\ , 

"  Stockton  &  D.-irliiii^fton  Railway  Co.  v.  Brown,  G  Jnr.  n.  s.  UGS;  s.  c.  !> 
II.  L.  Ca.s.  240;  Xorlh  Missouri  Railroad  Co.  v.  Lackland,  L*.j  .Mo.  515;  Sanio 
V.  Gott,  25  Mo.  5(0. 

^-  Flower  r.  London,  Brighton,  &  South  Coast  Railway  Co.,  2  Drcwry  &  S. 
330;  s.  c.  11  Jur.  n.  s.  40G. 

13  Lund  r.  IMidland  Railway  Co.,  34  Law  J.  Ch   27G. 

"  Clarence  Railway  Co.  v.  Great  North  of  Eni^iand  Railway  Co..  2  Railw. 
Cas.  70;}.  But  the  practice  of  courts  of  equity,  in  this  respect,  is  by  no  means 
uniform.     See  v)Jra,  §  205,  et  seq. 

VOL.  i.-iG  [*235] 


242  EMINENT   DOMAIN.  [PART   III. 

and  confining  corporations  to  the  privileges  plainly  given  to  tliem 
in  their  charter,  the  courts  of  this  country  should  be  found  en- 
larging *  these  privileges  by  implication."  ^^  And  in  commenting 
upon  the  former  decisions  of  that  court  upon  this  subject,  the 
same  learned  judge  here  says,  "  The  principle  is  recognized,  that 
in  grants  by  the  public  nothing  passes  by  implication."  ^^  And 
other  cases  are  here  referred  to  in  the  same  court,  in  support  of 
the  same  view.^" 

9.  But  it  is  not  to  be  inferred  that  the  courts  in  this  country, 
or  in  England,  intend  to  disregard  the  general  scope  and  purpose 
of  the  grant,  or  reasonable  implications  resulting  from  attending 
circumstances.  But  if  doubts  still  remain,  they  are  to  be  solved 
against  the  powers  claimed.^^ 

10.  But  where  the  right  of  the  company  to  appropriate  the  land 
is  perfected  under  the  statute,  they  may  enter  upon  it  without  any 
process  for  that  purpose,  and  the  resistance  of  the  owner  is  un- 
lawful, and  he  may  be  restrained  by  injunction,  but  that  is  unnec- 
essary.    The  statute  is  a  warrant  to  the  company .^^ 

11.  But  a  grant  to  a  railway  to  carry  passengers  and  merchan- 
dise from  A.  to  M.,  does  not  authorize  them  to  transport  mer- 

^5  Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 

16  United  States  v.  Arredondo,  6  Pet.  691,  738. 

"  Jackson  v.  Lampiure,  3  Pet.  280;  Beaty  v.  Knowler,  4  Pet.  152,  168; 
Providence  Bank  v.  Billings,  4  Pet.  514.  And  that  court  not  only  adheres  to 
the  same  view  still,  but  may  have  carried  it  in  some  instances  to  the  extreme 
of  excluding  all  imjilied  powers.  See  also,  upon  this  subject,  Commonwealth 
V.  Erie  &  Northeast  Railroad  Co.,  27  Penn.  St.  339;  and  Bradley  u.  Xew  York 
&  New  Haven  Railroad  Co.,  21  Conn.  294. 

18  Perrine  v.  Chesapeake  &  Delaware  Canal  Co  ,  9  How.  172;  Enfield  Toll- 
Bridge V.  Hartford  &  New  Haven  Railroad  Co.,  17  Conn.  454;  Springfield  v. 
Connecticut  River  Railroad  Co.,  4  Cush.  63.  The  following  cases  will  be 
found  to  confirm  the  general  views  of  the  text :  Tuckahoe  Canal  Co.  v.  Tuck- 
ahoe  Railroad  Co.,  11  Leigh,  42;  2  Cruise  Dig.  Greenl.  ed.  67,  68;  Thompson 
V.  New  York  &  Harlem  Railroad  Co.,  3  Sandf.  Ch.  625;  Oswego  Falls  Bridge 
Co.  V.  Fish,  1  Barb.  Ch.  547;  Moorhead  v.  Little  Miami  Railroad  Co.,  17 
Ohio,  340 ;  Stormfeltz  v.  Manor  Turnpike  Co.,  13  Penn.  St.  555 ;  Toledo  Bank 
V.  Bond,  1  Ohio  St.  636;  Cincinnati  College  v.  State,  19  Ohio,  110;  Camden 
&  Amboy  Railroad  Co.  v.  Briggs,  2  Zab.  623 ;  Carr  v.  Georgia  Railroad  & 
Banking  Co.,  1  Kelly,  524;  Macon  v.  Macon  &  Western  Railroad  Co.,  7  Ga. 
221;  New  London  v.  Brainard,  22  Conn.  552;  Bradley  v.  New  York  &  New 
Haven  Railroad  Co.,  21  Conn.  294;  Barrett  v.  Stockton  &  Darlington  Railway 
Co.,  2M.  &  G.  134. 

"  Niagara  Falls  &  Lake  Ontario  Railroad  Co.  v.  Hotchkiss,  16  Barb.  270. 

[*236] 


§  04.]  TAKING   LANDS   IN    INVITCM.  243 

chandisc  from  their  depot  in  the  city  of  M.  about  the  city,  or  to 
other  points,  for  the  accommodation  of  customers.^ 

12.  There  has  been  considerable  discussion  in  the  English 
*  courts,  within  the  last  few  years,  in  ref^ard  to  many  recent 
statutes  there,  for  the  improvement  of  markets  and  streets  in  the 
metropolis  or  districts  adjoining,  through  the  agency  of  the 
municipal  corporations.  And  while  the  courts  there,  and  espe- 
cially the  House  of  Lords,  in  one  case,^^  adhere  strenuously  to  tiic 
former  rule,  in  regard  to  private  corporations, —  that  they  can  only 
take  lands  compulsorily  for  the  needful  purposes  of  the  works 
which  they  arc  authorized  by  the  legislature  to  construct ;  on  the 
other  hand,  they  hold  that  it  is  competent  and  proper  under  parlia- 
mentary powers  granted  for  that  purpose,  to  allow  municipal  cor- 
porations to  reimburse  the  expense  of  any  improvements  which 
they  arc  authorized  to  carry  forward,  in  their  streets  and  squares 
or  markets,  by  taking  the  lands  adjoining  such  improvements,  at 
the  price  of  their  value  before  such  improvements,  and  selling 
them  at  the  advanced  prices  caused  by  such  improvements.  Ami 
it  was  held  that  the  municipality  having,  before  the  act  passed, 
contracted  for  the  sale  of  such  of  the  lands  so  to  be  taken  as  they 
should  not  require  for  the  purpose  of  the  public  improvement,  did 
not  disqualify  them  from  exercising  the  discretion  reposed  in  them 
by  the  act,  as  to  how  much  land  they  would  take.  This  rule  of 
law  in  regard  to  the  proper  mode  of  reimbursing  the  expense  of 
great  public  improvements  is  not  very  different  from  that  which 
has  been  extensively  in  use  in  America  under  the  name  of  better- 
ment acts,  whereby  the  expense  is  assessed  upon  the  adjoining 
property-owners,  upon  some  scheme  of  equalization,  presumptively 
apportioning  the  loss  and  benefit  equitably.^ 

*>  Macon  v.  Macon  &  Western  Railroad  Co..  7  Ga.  221. 

"  Galloway  v.  London,  12  Jur.  n.  s.  747;  s.  c.  Law  Ilep.  1  II.  L.  34. 

"  Infra,  §  235,  and  cases  cited  in  notes  22,  23. 

[♦237] 


244 


EMINENT   DOMAIN. 


[part  hi. 


SECTION    III. 
Conditions  Precedent. 


1.  Company   must    comply    with    condi- 

tions precedent. 

2.  Compliance  must   be  alleged  in  peti- 

tion. 

3.  Payment  as  a  condition  precedent  to 

vesting  of  title  in  company. 

4.  Filing  the  location  in  the  land  office, 

notice  to  subsequent  purchasers. 


5.  Damages  assessed  and  confirmed  by 
the  court,  the  owner  is  entitled  to 
execution. 

G.  Company  in  possession,  equity  will 
enforce  payment  and  enjoin  use  in 
default  thereof. 

7.  Subscriptions  to  stock  payable  in  land 
on  condition  precedent,  condition 
waived  by  conveyance,  &c. 


§  Qo.  1.  It  has  been  held  that  a  railway  company  must  comply 
with  all  the  conditions  in  its  charter,  or  the  general  laws  of  the 
*  state,  requisite  to  enable  it  to  go  forward  in  its  construction, 
before  it  acquires  any  right  to  take  land  by  compulsion,  (a)  In 
England  one  of  these  conditions  in  the  general  law  is,  that  stock, 
to  the  amount  of  the  estimated  cost  of  the  entire  work,  shall  bo 
subscribed.  And  wliere  the  charter,  or  the  general  laws  of  the 
state,  gave  the  right  to  take  land  for  the  roadway  only  upon  the 
legislature  having  approved  of  the  route  and  termini  of  the  line, 
it  was  held  the  company  could  not  proceed  to  condemn  lands 
for  that  purpose  until  this  approval  was  made.^ 

2.  And  where  the  act  of  the  legislature,  under  which  a  railway 
was  empowered  to  take  lands,  required  the  company  to  apply  to 
the  owner,  and  endeavor  to  agree  with  him  as  to  the  compensa- 
tion, unless  the  owner  be  absent  or  legally  incapacitated,  they  have 
no  right  to  petition  for  viewers  until  tliat  is  done.  The  petition 
should  allege  tlio  fact  that  they  cannot  agree  with  the  owner.^ 

1  Gillinwater  v.  Missi.ssippi  &  Atlantic  Railroad  Co.,  13  111.  1. 

2  Reitenbaugh  v.  Chester  Valley  Railroad  Co.,  21  Penn.  St.  100.  But 
where  the  coinpaify  has  the  right  to  lay  its  road,  not  exceeding  six  rods  in 
width,  and  has  fixed  the  centre  line  of  the  same,  it  may  apply  for  the  appoint- 
ment of  appraisers,  and  determine  the  width  of  the  road,  any  time  before  the 
appraisal.  Williams  v.  Hartford  &  New  Haven  Railroad  Co.,  13  Conn.  110. 
But  slight,  if  indeed  any,  evidence  of  this  failure  to  agree  with  the  land- 

(n)  Tims,  where  the  statute  requires  affected    land-holders,    it    cannot    be 

the  projectors  to  file  a  map  and  pro-  dispensed  with.     Ex  parte  New  York 

file,   and   give   notice   thereof   to   all  &  Boston  Railway  Co.,  62  Barb.  85. 
[*238j 


§  G5.]  CONDITIONS    PRECEDKNT.  245 

The  ricrlit  of  such  companies  to  take  land  is  held  in  some  states 
to  depend  upon  the  legal  sulliciency  and  validity  of  the  eertilieate 
and  public  record  of  organization  ;  and  it  was  held  the  company 
must  tjhow  these  prerequisites  to  be  strictly  in  coniormity  with 
the  refiuircments  of  the  law.^ 

3.  Where  the  charter  of  a  railway  company  provides  that  tlic 
title  of  land  condemned  for  the  use  of  the  company  sliall  vest  in 
the  company,  ujton  the  payment  of  the  amount  of  the  valuation, 
no  title  vests  until  such  payment,^  (^)  In  a  late  casc,^  the  law 
upon  *  this  subject  is  thus  summed  up:  Where  the  charter  of 
the  company  provides,  that  after  the  appraisal  of  land  for  their 
use,  "  upon  the  i)ayment  of  the  same,'^  or  deposit  (as  the  case  may 
be),  the  company  shall  be  deemed  to  be  seised  and  possessed  of 
all  such  lands,  "  they  must  pay  or  deposit  the  money  before  any 
such  right  accrues."  —  "The  payment  or  deposit  of  the  money 
awarded  is  a  condition  precedent  to  the  right  of  the  company  to 
enter  upon  the  land  for  the  purposes  of  construction;  and  with- 
out compliance    with  it   they    may    be    enjoined  by   a   court  of 

owner  is  required,  where  the  chiimant  appears  and  makes  no  objection  on  that 
ground.  Douglity  v.  Somerville  &  Easton  Railroad  Co.,  1  Zab.  412.  And 
tlie  petition  may  be  amended  where  this  averment  is  omitted.  Pennsylvania 
llailroad  Co.  v.  Porter,  29  Penn.  St.  1G5. 

3   Atlantic  &  Ohio  Railroad  Co.  v.  Sullivant,  5  Ohio  St.  276. 

*  Rallitnore  &  Susquehanna  Railroad  Co.  i\  Nesbit,  lU  How.  395.  See,  also, 
Conipton  r.  Susquehanna  Railroad  Co.,  3  Bland,  38(J,  391;  Van  A\'ickle  v. 
Piaihoad  Co.,  2  (Jreen,  1G2;  Stacy  v.  Vermont  Central  Railroad  Co.,  27  Vt. 
39;  Levering  r.  Railroad  Co.,  8  Watts  &  S.  459.  And  on  payment  of  the 
compensation  a.s.sessed  by  commissioners,  and  taking  pos.se.ssion  afterward, 
the  title  of  the  company  is  perfected,  as  against  the  party  to  the  proceeilings. 
Bath  River  Navigation  Co.  v.  Willis,  2  Raihv.  Cas.  7. 

'  Stacey  v.  Vermont  Central  Railroad  Co.,  27  Vt.  39. 

{h)    Payment  is  a  condition  prece-  438.     On  payment,  title  passes.     St. 

dent  to  title  or  use.    Lee  r.  Northwest-  Louis  &  Southeastern  Railway  Co.  r. 

ern  Union  Railway  Co.,  33  Wis.  222;  Teters,  68  111.   144;    Chicago  &  Iowa 

Provolt  r.  Chicago,    Rock    Island,    &  Railroad  Co.  r.  Hopkins,  90  111.  31(5. 

Pacific    Railroad    Co  ,    57    ^lo.    250  ;  But  the  owner  may  waive  his  right  to 

Colgan  r.   Allegheny  Valley  Railroad  prepayment.     New   Orleans  &  Selma 

Co.,  3  Pittsb.  394;  Chambers  v.  Cin-  Railroad    Co.    v.    Jones,   08    Ala.   48. 

cinnati  Railroad  Co.,  10  Am.  &  Eng.  In  general,  as  to  when  title  vests  in 

Railw.  Cas.  376.    And  mortgage  of  the  company,    see    In    re    Rliinebeck    & 

road  and  sale  on  foreclosure  will  make  Connecticut  Railro.ad  Co.,  8  Hun,  34; 

no  difference.     Kendall  v.  Missisquoi  s.  c.  affirmed,  67  N.  Y.  242. 
&  Clyde  River  Railroad  Co.,  55  Vt. 

[•230] 


246  EMINENT   DOMAIN.  [PART   III. 

equity,  or  prosecuted  in  trespass  at  law,  for  so  doing.  The  right 
of  the  land-owner  to  the  damages  awarded  is  a  correlative  right 
to  that  of  the  company  to  the  land.  If  the  company  has  no 
vested  right  to  the  land,  the  land-owner  has  none  to  the  price 
to  be  paid." 

4.  And  where  the  charter  contained  the  usual  power  to  take 
land,  it  was  held,  that  after  laying  out  their  road  and  filing  the 
location  in  the  land-office,  the  company  had  acquired  a  right  of 
entry  which  subsequent  purchasers  were  bound  to  respect.^ 

5.  And  where  the  road  has  been  laid  and  the  damages  assessed 
and  confirmed  by  the  court,  the  owner  of  the  land  is  entitled  to 
execution,  although  the  company  have  not  taken  possession  of  the 
land,  and  may  desire  to  change  the  route."  («?) 

6.  But  where  the  company  enters  into  the  possession  of  tlie 
land,  and  constructs  its  road  without  having  paid  the  whole  of 
the  damages  assessed  therefor,  a  court  of  equity  will  enforce  the 
payment  by  an  order  for  such  payment  within  a  time  named,  and 
in  default  will  restrain  the  company  by  injunction  from  using  the 
land  nntil  the  price  is  paid.^  In  one  case  it  was  held,  that  where 
the  railway  is  surveyed  and  located  and  the  land-owner  consents 
to  the  company  entering  and  building  their  road  before  the  dam- 
ages are  ascertained,  under  an  agreement  that  this  shall  be 
done  thereafter,  and  the  road  is  thereupon  constructed,  the  title 
to  the  land  passes,  and  the  owner  retains  no  lien  thereon  for  his 
damages,  but  must  look  for  payment  to  the  party  contracting.^ 
But  in  an  English  case,^*^  it  was  held  that  the  owner  of  lands 
*  taken  possession  of  by  a  railway  company,  either  under  statu- 
tory power  or  by  agreement,  has  a  lien  thereon  for  the  purchase- 

*  Davis  V.  East  Tennessee  &  Georgia  Railroad  Co.,  1  Sneed,  94. 

'   Neal  V.  Pittsburgh  &  Connellsville  Railroad  Co.,  31  Penn.  St.  19. 

8  Cozens  v.  Bognor  Railway  Co.,  Law  Hep.  1  Ch.  Ap.  591;  s.  c.  12  Jur. 
N.  s.  738. 

8  Knapp  V.  McAuley,  39  Vt.  275.  But  in  Vermont  the  vendor's  lien  on 
real  estate  for  the  price  is  expressly  repealed  by  act  of  the  legislature. 

1"  Walker  v.  Ware,  Iladham,  &  Buutingford  Railway  Co.,  Law  Rep.  1  Eq. 
195. 

(c)    But  on  trial  of  an  appeal  exe-  Penn.   Stat.,    Harrisburg   &  Potomac 

cution  may  not   be   awarded   by  the  Railroad  Co.  v.  Peffer,  81  Penn.  St. 

circuit  court.     St.    Louis,  Lawrence,  295;  Boyce  v.  Northern  Central  Rail- 

&  Denver  Railroad  Co.  v.  Wilder,  17  way  Co.,  1  Pearson,  113. 
Kan.  239.     See  as  to  stay  under  the 
[*240] 


§6t>.] 


PRELIMINARY  SURVEYS. 


247 


money,  and  also  for  the  damages  to  the  adjoining  land,  if  not  the 
subject  of  a  special  agreement  inconsistent  with  the  cuntiiiuance 
of  such  lien.  Of  this  lien  he  is  not  deprived  by  a  deposit  and 
bond  under  the  statute,  or  by  accepting  a  deposit,  less  than  the 
whole  amount  due  him,  and  a  court  of  equity  will  enforce  tliis 
lien,  although  the  railway  has  been  opened  for  public  use. 

7.  And  where  a  subscription  of  land  is  made  to  a  railway  com- 
pany, upon  some  condition  precedent  to  be  performed  by  the 
company,  such  condition  is  waived  by  conveying  the  land  and 
accepting  certificates  of  stock.  But  if  such  conveyance  is  induced 
bv  false  representations,  the  company  may  be  compelled  to  per- 
form it,  or  by  tendering  a  return  of  the  certificates  the  entire  con- 
veyance may  be  set  aside,  even  after  the  company  have  conveyed 
tlie  land  to  others  conusant  of  the  facts  at  the  time  of  such  cou- 
vcyancc.^ 

SECTION   IV. 


Preliminary  Surveys. 


4.  Company  liable  for  materials. 

5.  Right    to   take   materials.      Liability 

therefor,  how  ascertained. 

6.  7.  Liability  of  company  for  entering 

before  location. 


1.  Preliminary  survey  may  be  made  with- 

out compensation. 

2.  Compensation  may  be  required  by  stat- 

ute, but  company-  not  trespasser. 

3.  Company  may  make  temporary  entry, 

in  England,  for  wiiat  purposes. 

§  GG.  1.  It  is  settled  that  the  legislature  may  authorize  railway 
companies  to  enter  upon  lands  for  the  purpose  of  preliminary 
surveys,  without  making  compensation  therefor,  doing  as  littlo 
damage  as  possible,  and  selecting  such  season  of  the  year  as  will 
do  least  damage  to  the  growing  crops.  The  proper  rule  to  bo 
observed,  in  this  respect,  being  such  as  a  prudent  owner  of  tho 
land  would  be  likely  to  adoi)t,  in  making  such  surveys  for  hi.s 
own  advantage.^ 

2.  In  the  English  statutes,  and  in  many  of  the  sjiecial  charters 
and  general  railway  acts  in  the  American  states,  the  company  are 

1  Cushman  r.  Smith,  31  ^le.  217;  Polly  v.  Sarato-a  &  Washington  Rail- 
road Co.,  9  Barb.  449;  Bloodgood  r.  Mohawk  &  Hudson  Hailroa.i  Co.,  14 
Wend.  51;  s.  c.  18  Wend.  9 ;  s.  c.  1  Redf.  Am.  Railw.  C:is.  20^);  Mercery. 
McWilliams,  Wright.  132.  But  in  some  states  the  p.arty  is  m.ide  liable  by 
statute  for  damages  for  temporary  occupation. 

[*240] 


248  EMINENT   DOMAIN.  [PART   III. 

bound  to  make  compensation  for  such  temporary  use  of  the  land, 
*  where  they  do  not  ultimately  take  the  land.  But  in  such  case, 
where  the  statute  authorizes  the  entry  upon  the  land,  the  com- 
pany are  not  to  be  treated  as  trespassers,  and  even  where  the 
statute  provides  for  no  compensation,  it  is  not  regarded  as  taking 
private  property  for  public  use,  within  the  provisions  of  the 
American  state  and  United  States  constitutions. 

3.  Under  the  English  statute  the  notice  to  use  lands  for  tempo- 
rary purposes  should  specify  the  particular  purpose  for  whicli  the 
lands  are  required.^  By  the  English  statute,^  the  company  may 
make  a  temporary  entry  upon  land  for  the  following  purposes : 

(1)  For  the  purpose   of  taking  earth,  or  soil,  by  side  cuttings. 

(2)  For  the  purpose  of  depositing  soil.  (3)  For  the  purpose  of 
obtaining  materials  for  the  construction  or  repair  of  the  railway. 
(4)  For  the  purpose  of  forming  roads  to,  from,  or  by  the  side  of 
the  railway.^  (5)  By  section  42,  if  the  owner  of  such  lands  as 
the  company  give  notice  of  temporary  occupation,  elect  to  sell 
to  the  company  and  give  them  notice  accordingly,  they  are  com- 
pellable to  buy,  and  in  all  other  cases  to  make  compensation  for 
all  injury  to  the  same. 

4.  It  has  been  held,  in  regard  to  the  right  of  railway  companies 
to  take  materials  from  lands  adjoining  their  survey  to  build  their 
road,^  that  the  damages  need  not  be  appraised  till  after  the  mate- 
rials were  taken;  that  the  commissioners  had  authority  to  assess 
damages  for  every  act  which  the  company  might  lawfully  do 
under  their  charter ;  that  the  company  had  the  right  to  take  such 
materials,  in  invitujn,  and  to  use  other  land,  without  their  survey, 

2  Poyuder  v.  Great  Northern  Railway  Co.,  16  Sim.  3;  s.  c.  5  Railw.  Cas. 
196. 

8   Statute  8  &  9  Vict.  c.  20,  §  32. 

<  In  Webb  v.  :\Ianchester  &  Leeds  Railway  Co.,  4  Myl.  &  C.  116;  s.  c.  1 
Railw.  Cas.  576,  599,  Lord  Chancellor  Cottenham,  is  reported  to  liave  said: 
"  The  powers  given  to  these  companies  are  so  large,  and  frequently  so  injuri- 
ous to  the  interests  of  individuals,  that  I  think  it  is  the  duty  of  every  court  to 
keep  them  most  strictly  within  those  powers,  and  if  there  is  any  reasonable 
doubt  as  to  the  extent  of  their  powers,  they  must  go  elsewhere  and  get  en- 
larged powers,  but  they  will  get  none  from  me,  by  way  of  construction  of  the 
act." 

^  Vermont  Central  Railroad  Co.  v.  Baxter,  22  Vt.  365.  See  also  Bliss  v. 
Hosmer,  15  Ohio,  44;  Lyon  v.  Jerome,  15  Wend.  569;  Wheelock  r.  Young, 
4  Wend.  647.  Also  Lesher  v.  Wabash  Navigation  Co.,  14  111.  85.  See  iti/ra, 
§68. 

[*241] 


§  66.]  PRELIMINARY   SURVEYS.  249 

for  *  preparing  stone  for  their  use;  that  the  same  rij^ht  cquullv 
resided  in  the  eontractors  to  huild  the  road  ;  and  that  thu  corjjora- 
tion  is  Hiil)le  to  the  hmd-owner  for  niat(_'rials  so  taken  by  the 
contraetors,  notwithstanding  any  stipuhitions  in  the  eonlract  of 
letting  exeni})ting  them  from  sueh  liability,  as  betuctii  themselves 
and  the  contractors. 

5.  It  has  sometimes  been  made  a  question,  in  thi.s  country,  how 
far  the  legislature  could  confer  upon  railway  companies  the  power 
to  take  materials,  without  the  limits  of  their  survey,  in  invitumJ' 
And  in  a  somewhat  recent  case,^  where  the  charter  of  the  com- 
pany authorized  them  to  take  land,  so  much  as  might  be  neces- 
sary for  their  use,  and  also  to  take  for  certain  purposes  earth, 
gravel,  stone,  timber,  or  other  materials,  on  or  from  the  land  so 
taken,  it  was  held  the  company  were  not  thereby  empowered  to 
take  materials  from  land  not  taken. 

G.  But  a  railway  company,  who  enter  upon  land  to  construct 
their  road  before  the  time  for  filing  the  location  of  their  line,  are 
liable  as  trespassers,  if  the  location  when  filed  does  not  cover  the 
land  so  entered  upon." 

7.  And  the  omis  is  upon  the  company  to  justify  by  showing 
that  the  land  is  covered  by  the  authorized  location.'  The  hjca- 
tion  filed  by  the  company  is  conclusive  evidence  of  the  land 
taken  and  cannot  be  controlled  by  extrinsic  evidence,  though  a 
plan  or  maj),  made  a  part  of  the  description  of  the  location,  and 
filed  with  the  written  location,  may  be  referred  to  for  explana- 
tion, but  not  to  modify  or  control  the  written  location.' 

">  Parsons  v.  Howe,  41  Me.  21 S.  And  under  the  Enj^lish  statute  it 
has  been  lield  that  tlie  company  is  not  justified  in  taking  conipulsorily  huid 
required,  not  for  the  location  of  any  portion  of  tiie  works,  but  to  supply  eartli 
or  other  material  to  be  used  on  other  land.  Bentinck  v.  Norfolk  Estuary  Co., 
8  l)e  G.  M.  &  G.  71 1. 

">  Ilazen  v.  Boston  &  Maine  Railroad  Co.,  2  Gray,  574;  Stone  v.  Cambridge, 
C  Cush.  270;  Hayes  v.  Shackford,  3  N.  H.  10;  Lewiston  r.  County  Commis- 
sioners, 30  Me.  19;  Little  v.  Newport,  Abergavenny.  &  Hereford  ll4iilway  Co., 
12  C.  15.  752;  s.  c.  U  Eiig.  L.  &  Eq.  309;  Springfield  v.  Connecticut  Uiver 
Eaihoad  Co.,  4  Cush.  63,  G9,  70. 


250 


EMINENT   DOMAIN. 


[part   III. 


^SECTION  V. 


Power  to  take  temporary  Possession  of  Public  and  Private  Ways. 


1.  Company  in  England  may  take  pos- 
session of  public  or  private  ways,  in 
building  its  works.  Compensa- 
tion. 


2.  Remedy    for    obstruction   under    tbo 

statutes,  unless  damage  is  special. 

3.  Person  excavating  liiglivvay  in  building 

sewer  responsible  only  for  restora- 
tion. 


§  67.  1.  Under  the  English  statute,^  the  company  have  the 
power,  upon  notice,  to  take  temporary  possession  of  private  roads; 
and  by  other  sections,  they  may  take  possession  of,  cut  through, 
and  interrupt  public  roads.  But  in  all  such  cases  the  damage  is 
to  be  compensated,  and  the  road  restored,  when  practicable,  and 
if  not,  a  substituted  one  made. 

2.  If  a  private  way  be. obstructed,  the  remedy  is  to  sue  for  pen- 
alty under  the  statute,  or  to  bring  an  action  under  the  statute 
for  special  damage.  But  it  is  said  an  action  upon  the  case  for 
the  obstruction  cannot  be  maintained,  except  in  the  case  of 
special  damage,  which  is  expressly  saved  by  the  statute.^ 

3.  A  party  who  excavates  a  public  highway  for  the  purpose  of 
constructing  a  sewer,  by  contract  with  the  public  authorities,  and 
who  properly  restores  the  same  at  the  termination  of  his  work,  is 
not  further  responsible.  But  the  parish  must  look  after  the  sub- 
sequent repairs,  whether  rendered  necessary  by  the  natural  subsi- 
dence of  the  earth,  by  reason  of  the  former  excavation,  or  by 
ordinary  wear  and  tear.^ 

1  Statute  8  &  9  Vict.  c.  20,  §  30. 

2  Watkins  v.  Great  Northern  Railway  Co.,  16  Q.  B.  961 ;  s.  c.  6  Eng.  L. 
&  Eq.  179.  But  in  llangeley  v.  Midland  Railway  Co.,  Law  Rep.  3  Ch.  Ap. 
306,  it  is  said  the  company  has  no  power  under  the  statute  to  divert  a  public 
foot-path,  so  as  to  place  it  on  land  of  which  it  had  not  acquired  the  title. 

*  Ilyams  v.  Webster,  Law  Rep.  2  Q.  B.  201. 
[*243] 


§  G8.]        LAND    FOR   ORDINARY    AND    EXTRAORDINARY    USES.  2.j1 

♦SECTION   VI. 

Land  for  Ordinary  and  Extraordinary  Uaes. 

1,  2.  Uses  for  which  land  may  be  taken.  I  3    Implied  right  of  company  in  adjoining 
Necessary  uses.  I  state  forming  junction  at  state  line. 

§  G8.  1.  By  the  English  statutes,  railway  companies  may  not 
only  purchase  land  for  the  ))urpuse  of  the  track,  but  aLso  fur  all 
such  extraordinary  uses  as  Avill  conduce  to  the  successful  prose- 
cution of  their  business.^  (a)     This  includes  the  site  of  stations, 

1  Statute  8  &  9  Vict.  c.  20,  §  45.  This  section  is  operative  to  enable  the 
company  to  take  land  for  extraordinary  purposes,  beyond  the  line  of  deviation, 
only  by  consent  of  the  owners.  But  the  justices  have  no  jurisdiction,  under 
the  Railway  Clauses  Consolidation  Act,  to  determine  when  accommodation 
works  are  necessary,  but  only  what  works  are  necessary,  assuming  that  some 
such  works  are  to  be  made.  Regina  /;.  Waterford  Railway  Co  ,  2  Ir.  Law, 
580.  See  infra,  §  93  et  seq.  In  Chicago,  Burlington,  &  Quincy  Railroad  Co. 
V.  Wilson,  17  111.  123,  it  was  held,  that  a  grant  to  a  railway  company  to  con- 
struct a  road,  with  such  appendages  as  might  be  deemed  necessary  for  the  con- 
venient use  thereof,  authorized  the  taking  of  land  for  workshoi">s.  And  (his 
power  is  not  exhausted  by  the  apparent  completion  of  the  road.  If  an  increase 
of  business  shall  require  other  appendages,  or  more  room  for  tracks,  it  may  in 
like  manner  be  taken,  toties  quolies.  But  the  land-owner  may  traverse  the  riglit 
of  the  company  to  take  the  land,  and  liave  it  determined  by  the  proper  tribu- 
nal. South  Carolina  Railroad  Co.  v.  Blake,  9  Rich.  228.  So  also  the  company 
may  take  land  for  erecting  a  paint-shop  and  lumber  and  timber-sheds  for  the 
use  of  the  company.  Low  v.  Galena  &  Chicago  Union  Railroad  Co.,  18  111. 
324.  And  the  company  may  take  all  lands  requisite  for  stations,  for  the  stor- 
ing and  keeping  of  cars  and  engines,  for  the  receipt  and  delivery  of  freigiit 
and  for  its  safe  storage.  And  it  is  no  answer  to  this  claim  that  tliere  are  other 
lands  suitable  for  those  uses  which  the  company  might  purchase,  or  that  the 
company  already  has  a  limited  interest  in  the  lands  proposed  to  be  taken. 
In  re  New  York  &  Harlem  Railroad  Co.,  40  N.  Y.  540. 

(a)  New  York  Central  &  Hudson  determine  the  measure  of  its  wants  and 

River    Railroad   Co.    v.   Metropolitan  to  select  locations.     New  York  Central 

Gas  Light  Co.,  5  Hun,  201  ;  s.  c.  03  &    Hudson    River    Railroad    Co.    v. 

N.  Y.  320;  Cother  v.  Midland  Rail-  I^Ietropolitan  Gas-Light  Co..  5  Hun, 

way  Co.,  2  Phillips,  409.     Under  the  201;  s.  c.  03  N.  Y.  320.     As  to  the 

New  York  statute  the  company  has  in  taking  of  additional  ground  nt  a  junc- 

a  considerable  degree   the   power   to  tion,  to  give  more  track  room.  &c.,  see 

[-44] 


252  EMINENT   DOMAIN.  [PART   III. 

yards,  wharves,  places  for  the  accommodation  of  passengers,  and 
the  deposit  of  freight,  both  live  and  dead,  and  for  the  erection  of 
Avcigliing-machines,  toll-houses,  offices,  warehouses,  and  other 
buildings  and  conveniences;  land  for  ways  to  the  railway  while 
in  the  course  of  construction,  and  to  stations  always.  But  a  rail- 
way company  in  England  cannot  acquire  the  fee  of  land  for  Uie 
mere  purpose  of  excavating  soil  in  order  to  construct  an  em))ank- 
mcnt.2  (5)  And  it  has  been  decided  that  a  railway  company  cannot 
take  land  for  any  subsidiary  purpose,  even  where  the  direct  act  of 
the  company  comes  within  the  powers  granted  them.^  As  where 
they  proposed  *to  alter  the  course  of  the  road,  in  such  a  manner 
as  to  accommodate  an  adjoining  land-owner,  in  consideration  of 
which  he  proposed  to  pay  a  portion  of  the  expense  of  the  altera- 
tion, the  company  were  enjoined  from  making  the  alteration, 
although  coming  clearly  within  their  powers  if  done  solely  for 
their  own  accommodation.  The  ground  of  the  injunction  was,  that 
the  alteration  required  the  removal  of  the  house  of  A.,  and  the 
change  was  made  partly  for  the  accommodation  of  B.,  a  purpose 
not  within  the  powers  granted  the  railway  company.  But  it  is 
incident  to  the  grant  of  a  railway,  that  it  may  lay  down  as  many 
sidings  and  other  collateral  tracks  as  are  fairly  requisite  to  ac- 
commodate its  business.'^  But  this  will  not  allow  the  company  to 
build  a  branch  road  on  a  different  route  from  that  embraced  in 
its  charter."* 

2.  The  same  may  undoubtedly  be  done  in  this  country,  whether 
any  express  provision  to  that  effect  is  contained  in  the  charter  of 
the  company,  or  the  general  statutes  of  the  state,  or  not ;  such 

2  Eversfield  v.  Midsussex  Railway  Co.,  1  Gif.  151;  s.  c  affirmed,  3  De  G. 
&  J.  286. 

8  Dodd  V.  Salisbury  &  Yeovil  Railway  Co.,  1  Gif.  158;  s.  c  on  appeal, 
5  Jur.  N.  s.  782. 

*  Bangor,  Oldtown,  &  Milford  Railroad  Co.  v.  Smith,  47  Me.  31.  A  grant 
to  cross  a  highway  will  not  justify  running  parallel  to  and  upon  it.     lb. 

Union  Railroad  Transfer  &  Stockyai'd  ercise  of  the  right  of  eminent  domain 

Co.  V.  Moore,  80  Ind.  458.     And  as  for  the  procurement  of  gravel  for  bal- 

to  ground  for  workshops,  see  Southern  last.     New  York  &  Canada  Railroad 

Pacific  Railroad  Co.  v.  Raymond,  53  Co.  v.  Gunnison,  3  Thomp.  &  C.  032. 

Cal.  223.  But  see  Valley  Railway  Co.  i^.  Bohm, 

(b)  Not  can  it  in  this  country  ac-  34  Ohio  St.  114. 
quire  land  outside  its  way  by  the  ex- 

[*245] 


§  08.]        LAND    FOIi   ORDINARY    AND    EXTRAORDINARY    USES.  2.03 

power  being  necessarily  imi»lic(l,  as  indispensable  to  tlic  aoconi- 
plishment  of  the  general  purjjoses  of  the  corjjoration,  and  the 
design  of  the  legislative  grant,  (e) 

3.  And  the  same  implied  power  is  to  be  extended  to  a  railway 
corporation,  in  a  neighboring  state,  with  Avhidi,  by  express 
statute,  railways  of  the  state  where  the  lands  lie  have  the  rigiit 
to  unite  at  the  line  of  the  state,^  or  to  extend  their  road  into 

6  State  V.  Boston,  Concord,  &  Montreal  Railroad  Co.,  2o  Vt.  43:);  s.  c. 
1  Rc'df.  Am.  Raihv.  Cas.  81.  In  this  case  a  railway  company  in  New  llami>- 
sliire  had  constructed  a  road  to  the  line  of  Vermont  (where  by  statute  of  Ver- 

(c)  To  condemn  property  for  the  to  what  is  deemed  necessary  under  the 
use  of  a  railway,  it  is  necessary  that  statutes  of  Maine,  .see  .SpolTord  i'. 
tlie  use  should  be  public.  Trac}'  v.  Bucksport  &  Bangor  Railroad  Co.,  CG 
Elizabethtown  Railroad  Co.,  80  Ky.  Me.  2G.  As  to  the  width  of  the  right 
259;  Kdgewood  Railroad  Co. 's  Appeal,  of  way,  whether  one  hundred  feet  or 
70  Peun.  St.  2.">7;  Iloggatt  v.  Viclcs-  more,  .see  Chicago,  Rock  Island,  &  Pu- 
burg,  Sineveport,  &  Pacific  Railroad  cific  Railroad  Co.  v.  People,  4  Brad. 
Co.,  oi  La.  An.  G24.  Land  cannot  be  Ap.  4G8;  Wisconsin  Central  Railroail 
taken  for  a  purely  private  industry,  Co.  r.  Cornell  L'niversity,  52  Wis.  ;j.j7; 
not,  e.  g..  to  build  a  flume  to  carry  off  Johnston  i-.  Chicago,  Milwaukee,  &  St. 
the  tailings  from  a  mine.  Consoli-  Paul  Railway  Co.,  58  Iowa,  537.  Nor 
dated  Channel  Co.  r.  Central  Pacific  does  the  law  require  the  company  to 
Railroad  Co.,  51  Cal.  209.  If  the  use  condemn  all  the  land  it  may  need  at 
be  falsely  represented  as  public  and  once.  It  may  acquire  additional  land 
the  court  .so  induced  to  condemn,  the  as  it  is  needed  for  its  business.  Cen- 
state  may  interpose  by  its  proper  law  tral  Branch  Union  Pacific  Railroad 
officer  to  correct  the  abuse.  People  v.  Co.  v.  Atchison,  Topeka,  &  Santa  Fe 
Pittsburg  Railroad  Co.,  53  Cal.  094.  Railroad  Co.,  20  Kan.  CGO;  Dietrichs 
The  riglit  is  limited  to  such  property  v.  Lincoln  &  Northwestern  Railroad 
n.«  is  necessary,  /n  ?-c  New  York  Cen-  Co.,  supra ;  Fisher  v.  Chicago  & 
tral  &  Hudson  River  Railroad  Co.,  77  Springfield  Railroad  Co.,  104  111. 
N.  Y.  248;  Chicago  &  Western  Indi-  323.  As  to  what  land  may  be  so  taken, 
ana  Railroad  Co.  v.  Dunbar,  100  111.  see  State  r.  United  New  Jersey  Rail- 
11(»;  Tracy  r.  Elizabethtown  Railroad  road  &  Canal  Co.,  43  N.  J.  Law.  110; 
Co.,  80  Ky.  259.  But  see  Sadd  v.  Curtis  v.  St.  Paul,  Stillwater,  &  Tay- 
^laldon,  Witham,  &  Braintree  Railway  lor's  Falls  Raihoad  Co.,  20  Minn.  28. 
Co..  0  W.  II.  &  G.  143.  Prima  facie  Land  for  widening  roaiiway.  Bock  r. 
the  decision  of  the  general  manager  of  United  New  .Jensey  Railroad  &  Canal 
a  railroad  is  a  proper  measure  of  the  Co.,  39  N.  J.  Law,  45.  Land  for  side- 
necessity.  Dietrichs  v.  Lincoln  &  tracks.  Getz's  Appeal,  3  Am.  &  Kng. 
Northwestern  Railroad  Co.,  13  Neb.  Railw.  Cas.  180;  Fi.-lier  v.  Chicago  & 
301.  And  see  Smith  v.  Chicago  &  Springfield  Railroad  Co.,  104  111.  323. 
Western  Indiana  Railroad  Co.,  105  111.  Land  for  wharves  on  the  Hud.son.  In 
511 ;  Stringham  r.  Oshkosh  &  Mi.ssis-  re  New  York  Central  &  Hudson  River 
sippi  Railroad  Co.,  33  Wis.  471.     As  Railroad  Co.,  77  N.  Y.  24 S. 

[*245] 


254  EMINENT   DOMAIN.  [PART   III. 

this  state.^  *  And  for  the  purpose  of  exercising  the  rights  con- 
ferred by  their  act  upon  the  company,  the  contractor  for  the  execu- 
tion of  railway  works  must  be  deemed  an  agent  of  the  company.'^ 

mont,  two  other  roads  were  permitted  to  unite  with  any  New  Hampshire  road), 
and  had  there  purchased  land,  adjoining  the  terminus  of  its  road,  on  the  wes- 
tern bank  of  the  Connecticut  River,  the  bridge  being  all  in  New  Hampshire 
except  the  western  abutment,  which  was  on  Vermont  soil.  The  company  had 
no  express  grant  from  the  legislature  of  Vermont.  A  controversy  arose  between 
the  New  Hampshire  company  and  the  Vermont  companies  in  regard  to  the 
terms  of  junction,  and  a  quo  warranto  was  prosecuted  on  behalf  of  the  state, 
to  determine  the  right  of  tlie  New  Hampshire  company  to  purchase  and  hold 
lands  in  Vermont.  It  was  attempted  to  maintain,  on  the  part  of  the  prosecu- 
tion, that  there  existed  a  right  in  any  state  to  confiscate  or  escheat  lands  held 
by  a  foreign  corporation.  But  the  court  repudiated  the  proposition,  and  held 
that  the  New  Hampshire  company,  by  the  grant  from  Vermont  to  the  Vermont 
roads  of  the  right  to  form  a  junction,  at  the  state  line,  had  by  implication  ac- 
quired permission  to  purchase  and  hold  so  much  land  as  was  necessary  for  the 
accommodation  of  its  business,  present  and  prospective,  at  that  point,  whether 
any  junction  had  yet  been  arranged  or  not;  and  that  fifteen  acres  was  not 
an  unreasonable  amount  of  land  for  such  purposes.  The  court  did  not  hold 
that  the  New  Hampshire  company  had  any  right  to  take  land  by  compulsory 
proceedings  in  Vermont,  or  that  its  purchase  would  deter  the  Vermont  roads 
from  taking  by  statutory  compulsion  from  them  such  portions  of  the  same  land 
as  they  might  require  for  their  purposes.  See  also  Nashville  Railroad  Co.  v. 
Cowardin,  11  Humph.  348.  In  New  Hampshire,  Crosby  v.  Hanover,  20  Law 
Rep.  646,  it  was  held  that  the  franchise  of  a  toll-bridge  across  the  Connecticut 
River  might  be  taken  for  a  free  highway,  on  compensation  being  made  to  the 
proprietors ;  and  that  it  made  no  difference  that  one  of  the  abutments  of  the 
bridge  was  in  Vermont,  and  consequently  could  not  be  taken  by  any  proceedings 
in  New  Hampshire,     s.  c.  36  N.  H.  404. 

8  New  York  &  Erie  Railway  Co.  v.  Young,  33  Penn.  St.  175. 

'  Semple  v.  London  &  Birmingham  Railway  Co.,  9  Sim.  209;  s.  c.  1  Railw. 
Cas.  480;  Vermont  Central  Railroad  Co.  v.  Baxter,  22  Vt.  365;  suprUf  §  66; 
Lesher  v.  Wabash  Navigation  Co.,  14  111.  85. 
[*246J 


§G9.] 


•TITLE   ACQUIRED   BY   COMPANY. 


256 


SECTION  VII. 
Title  acquired  by   Company. 


1.  7,  8.  Company  acquires  only  right  of 

way.  Kiglit  to  licrbage  and  minerals. 

2.  Can  take  notliing  from  soil  except  fot 

construction. 

3.  Deed  in  fee  may  convey  only  right  of 

way,  company  being   incapable  of 
iiolding  fee. 

4.  Wlietiier  company  has  an  estate  sub- 

ject to  execution. 

5.  Whether  company  having  right  to  cross 

way  of  another,  bound  to  purchase. 

6.  Conflicting   rights    in    different   com- 

panies. 


9-11.  Fee  in,  and  right  of  company  to 
use,  streets  of  u  city; 

12,  13.  Land  reverts  to  tiie  owner  on  dis- 
continuance of  public  use. 

14.  True  rule  stated. 

15.  Title  of  company  depending  on  condi- 

tions, conditions  must  be  performed. 
IG.  Further  assurance  of  title. 

17.  Condemnation  cannot  be  impeached. 

18.  Fee  acquired  by  public,  no  reverter 

on  discontinuance  of  public  use. 


§  G9.  1.  Questions  have  sometimes  arisen  in  regard  to  the  pre- 
cise title  acquired  by  a  railway  company  in  lands  purchased  by 
them,  where  the  conveyance  is  a  fee-simple.  It  is  certain,  in  this 
country,  upon  general  principles,  that  a  railway  company,  by  virtue 
of  their  *  compulsory  powers,  in  taking  lands,  could  acquire  no 
ab.solute  fee-simple,  but  only  the  right  to  use  the  land  for  their 
purposes.  And  it  is  very  questionable  whether  a  railway,  in  such 
case,  is  entitled  to  the  herbage  growing  upon  the  land,  or  to  culti- 
vate the  same,  or  to  dig  for  stone  or  minerals  in  the  land,  beyond 
what  is  necessary  for  their  purposes  in  construction. 

2.  In  England,  the  statutes  ^  (a)  give  all  such  minerals  to  the 

1  Statute  8  &  9  Vict.  c.  20,  §  17.  In  Connecticut  &  Passumpsic  Rivers  Rail- 
road Co.  II.  Ilolton,  ;}2  Vt.  4;},  it  was  decided,  that  the  land-owner,  after  liis  land 
has  been  legally  appropriated  for  the  track  of  a  railway,  has  no  right  to  enter  on 


('()  See  Leavenworth,  Topeka,  & 
Southwestern  Railway  Co.  v.  Paul, 
28  Kan.  816,  as  to  the  right  to  herb- 
age. In  In  re  Hartford  &  Connecti- 
cut Western  Railroad  Co.,  65  How. 
Pr.  133,  it  was  held  that  the  company 
acquired  only  the  right  to  use  the  land 
for  the  purposes  of  its  incorporation, 
and  hence  need  not  pay  for  minerals 
under  the  surface. 

The  title  acquired  under  statute  is 
sufficient  in  defence  of  an  ejectment 


against  the  company.  Great  Western 
Railway  Co.  v.  Lutz,  02  U.  C,  C.  P. 
IGG. 

In  Mississippi  River  Bridge  Co.  r. 
Ring,  58  Mo.  491,  it  was  lield  that  on 
condemnation  of  land  the  buildings 
thereon  belonged  to  the  company,  and 
that  trespass  would  lie  for  their  re- 
moval. So  of  trees,  which  may  be 
useful  in  the  construction  of  the  road. 
Taylor  v.  New  York  &  Long  Branch 
Railroad  Co.,  3S  N.  J.  Law.  28. 
[*247] 


256  EMINENT   DOMAIN.  [PART  III, 

former  owner  of  the  land,  except  such  as  are  necessary  in  con- 
struction, unless  the  same  shall  have  been  expressly  purchased. 
And  in  this  country,  no  doubt,  the  same  construction  would  be 
adopted,  in  regard  to  all  lands  taken  by  compulsory  proceeding.^ 

*  3.  But  it  admits  of  some  question,  we  think,  what  is  the  pre- 
cise effect  of  a  deed,  in  fee-simple,  to  a  railway  company.  It 
would  seem,  upon  general  principles,  that  the  grantor  should  ))e 
estopped  from  claiming  any  interest  in  the  land,  after  the  execu- 
tion of  his  deed.  But  it  seems  to  be  agreed,  in  all  the  books,  that, 
to  the  efficacy  of  a  deed  of  land,  it  is  requisite  that  the  grantee  be 
capable  of  taking  the  estate.  And  if  the  grantee  be  an  alien,  or  a 
corporation  incapable  of  holding  such  estate,  the  deed  is  inopera- 
tive. Hence,  in  some  of  the  cases,  it  seems  to  be  a  just  inference 
from  the  reasoning  of  the  court,  that  a  railway,  by  a  deed  in  fee- 
it  or  use  it  for  any  purpose  -which  in  the  least  endangers  or  embarrasses  its  use 
for  any  purpose  for  which  the  railway  has  appropriated  it.  No  right,  e.  g.,  to  en- 
ter with  teams  to  remove  turf,  the  effect  of  wliich  would  be  to  enhance  the  dan- 
ger of  cattle  getting  on  the  track,  and  to  increase  the  dust  l)y  the  passage  of 
the  cars.  Nor  can  the  owner  cross  the  track  at  any  point  other  than  that  estab- 
lished  by  the  taking  of  the  land;  nor  can  he  build  a  farm-crossing,  unless  es- 
tablished by  law.  In  Troy  &  Boston  Railroad  Co.  v.  Potter,  42  Vt.  26.3,  it  was 
decided  that  the  owner  of  the  fee  of  land  condemned  for  the  use  of  a  railway 
has  no  right  to  enter  on  the  land  while  in  the  use  of  the  railway,  and  take 
therefrom  the  herbage  and  other  products  of  the  soil.  And  the  company  may 
maintain  trespass  for  all  unlawful  entries  and  acts  on  the  land  appropriated  to 
its  u.se  when  such  acts  interfere  with  their  exclusive  possession,  s.  p.  in  North 
Pennsylvania  Railroad  Co.  v.  Rehman,  5  Am.  Law  Reg.  x.  s.  49. 

2  Baker  v.  John.son,  2  Hill,  N.  Y.  342.  It  was  held  here,  that  a  contractor 
to  build  a  canal,  who  stipulated  to  find  all  the  materials,  with  the  privilege  of 
using  all  the  earth  obtained  by  excavation,  might  also  use  the  stone  obtained 
by  excavating  the  bed  of  the  canal  across  plaintiif 's  land.  Timber  standing 
on  land  taken  for  a  railway  belongs  to  the  owner  of  the  land,  except  so  far  as 
necessary  for  the  construction  and  repair  of  the  road.  Preston  v.  Dubuque 
&  Pacific  Railroad  Co.,  11  Iowa,  15.  Earth  and  minerals  above  the  grade  of 
the  road  may  be  used  by  the  company,  but  those  below  belong  to  the  owner  of 
the  land.     Evans  v.  Haefner,  29  Alo.  141. 

The  condemnation  of  land  for  the  construction  of  a  railway  justifies  the 
entry  and  necessary  excavation  of  the  soil  by  the  company  and  its  servants. 
Green  v.  Boody,  21  Ind.  10.  But  stone  excavated  in  the  construction,  and 
not  used  on  any  portion  of  the  line,  belongs  to  the  owner  of  the  land.  Chapin 
V.  Sullivan  Railroad  Co.,  39  N.  H.  564.  But  it  seems  from  this,  and  from 
the  general  practice  in  the  construction  of  railways,  that  earth  or  any  other 
material  excavated  on  one  portion  of  the  line  may  be  used  on  any  other  por- 
tion, if  required. 

[*248] 


§  G9.]  TITLE   ACQUIRED    BY   COMPANY.  2ol 

simple,  acquires  only  a  right  of  \ya.y,^  that  being  all  which  such 
corjioratiun  is  capable  of  taking. 

4.  It  has  been  held  in  some  of  the  states,  that  the  lands  of  a 
railway  company  are  subject  to  sale  upon  execution  against  them, 
or  may  be  assigned  by  them.*     So,  too,  they  may  purchase  and 

»  Dean  v.  Sullivan  Railroad  Co.,  2  Fost.  X.  II.  olO;  United  States  r.  Harris, 
1  Sumner,  21.  It  is  held  in  some  cases,  that  a  grant  to  a  railway,  before  its 
iucorporation,  is  valid,  not  being  the  conveyance  of  a  fee,  and,  to  its  operation 
and  effect,  not  requiring  the  existence  of  a  gi'antee,  at  the  time  of  the  convey- 
ance. Rathbone  v.  Tioga  Navigation  Co.,  2  Watts  &  S.  74.  But  it  seems 
now  to  be  considered  that  railway  companies  may  acquire  the  absolute  fee  in 
land  by  purchase  and  deed  in  fee-simple,  and  the  title  will  remain  in  the  com- 
pany after  it  has  changed  the  location  of  its  road,  and  ceased  to  use  it  for  cor- 
porate purposes.     Page  v.  Heineberg,  40  Vt.  81. 

*  Arthur  v.  Commercial  &  Railroad  Rank,  9  Sm.  &  M.  391.  But  this  right 
to  levy  on  the  lands  of  a  railway  company  extends  to  such  lands  only,  however 
acquired,  as  are  not  requisite  to  the  full  exercise  and  enjoyment  of  tiie  corporate 
franchise.  Plymouth  Railroad  Co.  c  Col  well,  39  Penn.  St.  337.  And  a  canal 
basin  is  not  such  a  legitimate  incident  of  a  railway  franchise  as  to  be  protected 
from  levy,  where  there  is  no  authorized  canal  connection,  lb.  And  town  lots 
held  by  a  railway  company  are  not  to  be  regarded  as  an  incident  of  the  f  lanchise, 
so  as  to  pass  by  a  mortgage  of  the  road  "  with  its  corporate  privileges  and  appur- 
tenances," unless  directly  appurtenant  to  the  road  and  indispensably  necessary 
to  the  exercise  of  its  franchises.  Shamokin  Valley  Railroad  Co.  r.  Livermore,  47 
Penn.  St.  405.  It  has  been  held,  that  railway  bonds  were  liable  to  levy  on  ex- 
ecution, but  that  seems  questionable,     lletherington  i\  Hayden,  11  Iowa,  33-5. 

In  Hill  V.  Western  Vermont  Railroad  Co.,  32  Vt.  68,  the  company,  before 
the  road  wa.s  laid  out  or  surveyed,  procured  a  bond  from  one  for  such  of  his 
lands  as  should  be  required  for  the  road.  The  charter  provided  that  the 
directors  might  cause  a  survey,  and  fix  the  line,  and  that  the  company  might 
enter  and  take  such  lands  as  were  necessary  for  the  road  and  accommoda- 
tions. The  survey  of  the  road,  made  by  order  of  the  directors,  designated 
certiiin  land  belonging  to  such  person  as  depot  grounds;  and  the  company  paid 
him  for  it,  but  never  took  a  conveyance.  The  plaintiff  levied  on  a  portion  of 
land  as  the  property  of  the  company,  and  brought  ejectment  for  possession. 
The  referee  found  that  a  part  of  the  land  embraced  in  the  levy  was  not  neces- 
sary to  the  company,  and  would  not  become  so.  It  was  held,  that  the  com- 
pany was  not  entitled  to  conveyance  of  any  gi-eater  quantity  than  it  required 
for  depot  accommodations;  that  under  the  charter  the  company  could  not  ac- 
quire any  more  land,  or  any  greater  estate  therein,  than  was  really  requisite; 
that  the  estate  requisite  was  a  mere  easement,  and  therefore,  not  subject  to 
levy;  that  when  taken  for  such  puqioses,  the  rule  was  the  same,  whether  the 
land  was  taken  compulsorily  or  under  an  agreement;  that  luider  the  charter 
the  directors  had  power  to  lay  out  the  road  and  stations  as  they  saw  fit ;  and 
that,  so  long  as  they  acted  in  good  faith,  their  decision  as  to  the  quantity  of 
land  required  for  depot  accommodations  would  be  conclusive. 

VOL.  I. -17  [*248J 


258  EMINENT    DOMAIN.  [PAIIT    III. 

*  liold  land  for  tlic  procurement  of  materials,  or  for  the  economical 
construction  of  the  road.^(/>)  In  an  English  case/^  it  was  held 
that  the  railway  could  not  use  land,  thus  conveyed,  for  any  other 
purpose  than  that  cxjjresscd  in  the  acts  of  parliament,  by  virtue 
of  which  the  company  exercised  their  functions. 

5.  It  has  been  held  that,  where  one  railway  has  power  in  their 
act  to  cross  another  railway,  there  being  no  express  permission  in 
the  act  for  one  company  to  take  land,  or  for  the  other  company  to 
sell,  that  the  first  company  could  not  be  compelled,  l^y  mandamus, 
to  purchase  any  of  the  land  upon  which  the  other  road  was  con- 
structed, their  only  claim  being  one  for  damages.'^  So,  also,  the 
right  to  make  a  junction  with  a  pre-existing  railway  does  not  im- 
ply the  power  to  take  the  title  to  any  of  the  lands  of  such  railway, 
unless  that  is  indispensable  to  effect  the  junction,  but  only  to  enter 
upon  such  lands,  by  way  of  easement,  for  the  purpose  of  effecting 
the  junction.^ 

6.  But  where  the  legislature  confer  the  power  upon  two  railway 

*  companies  to  purchase  compulsorily  the  same  piece  of  land,  and 
one  company  has  taken  the  land  and  constructed  their  road  upon 
it,  equity  will  enjoin  the  other  company  from  proceeding  to  take 
it  compulsorily  for  their  use,  until  the  conflicting  rights  of  the 
companies  are  determined  by  a  trial  at  law.^ 

7.  The  general  course  of  decisions  in  this  country  coincides  v/ith 
the  English  common-law  rule,  in  regard  to  the  title  acquired  by 
the  public,  by  the  exercise  of  the  right  of  eminent  domain,  that  is, 
that  no  more  of  the  title  is  divested  from  the  former  owner  than 
what  is  necessary  for  the  public  use.  The  owner  may  still 
maintain  trespass  for  any  injury  to  the  freehold  by  a  stranger.^® 

5  Overmyer  v.  "Williams,  13  Ohio,  2G. 

6  IJostock  v.  North  Staffordshire  Railway  Co.,  3  Smale  &  G.  283. 

'  Regina  v.  South  Wales  Railway  Co  ,  13  Q.  B.  988  ;  s.  c.  6  Railw.  Cas.  489. 

8  Oxford,  Worcester,  &  Wolverhampton  Railway  Co.  v.  South  Staffordshire 
Railway  Co.,  1  Drewry,  255;  s.  c.  19  Eng.  L.  &  Eq.  131. 

3  Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.  v.  Great  Northern  Rail- 
way Co.,  9  Hare,  284;  s.  c.  12  En?.  L.  &  Eq.  21G. 

10  Dovaston  v.  Payne,  2  II.  I>1.  527;  Rust  f.  Low,  6  Ma.ss.  90;  Jackson  v. 
Rutland  &  Burlington  Railroad  Co.,  25  Vt.  151;  s.  c.  1  Redf.  Am.  Railw. 
Cas.  302;  2  Rol.  Abr.  560,  pi.  1. 

(Jj)  A  company  may  not  take  the    Eversfield  y.  Mid-Sussex  Railway  Co., 
fee  merely  for  the  purpose  of  procur-     1  Gif.  153. 
ing    soil    to   make   an   embankment. 

[*249,  *250] 


§  G9.]  TITLH    ACQUIRKI)    RY    COMPANY.  259 

8.  And  ill  regard  to  railways,  in  j)arlieular,  it  lias  been  repeat- 
edly decided  in  the  different  states,  that  they  take  only  an  ease- 
ment in  laud  condemned  for  their  iisc.^^  In  an  important  case  ^^ 
in  the  Supreme  Court  of  the  United  States,  involvinir  questions  of 
title  in  reirard  to  the  streets  in  the  city  of  Pittsburgh,  Mr.  Justice 
McLean  thus  sums  up  the  general  doctrine  :  — 

"  I>y  the  common  law,  the  fee  in  the  soil  remains  in  the  original 
owner  where  a  public  road  is  established  over  it ;  l)ut  the  use  of 
the  road  is  in  the  public.  The  owner  parts  with  this  use  only  ; 
for  *  if  the  road  shall  be  vacated  by  the  public  he  resumes  the  ex- 
clusive possession  of  the  ground  ;  and  while  it  is  used  as  a  high- 
way he  is  entitled  to  the  timber  and  grass  which  may  grow  upon 
the  surface,  and  to  all  minerals  which  may  be  found  below  it.  He 
may  bring  an  action  of  trespass  against  any  one  who  obstructs  the 
road." 

0.  But  a  query  is  expressed  here,  as  in  many  other  cases, 
whether  this  rule  applies  to  the  streets  and  thoroughfares  of 
cities.  In  a  case  in  one  of  the  British  provinces  on  this  continent. 
Nova  Scotia,  it  is  said  to  have  been  held,  by  a  divided  court,  after 
long  debate  and  deliberation,  that  the  title  to  land  co\ered  by  a 
highway  or  street,  vested  absolutely  in  the  crown,  and  that  the 
owner  had  no  reversionary  interest.^^ 

10.  S(Mne  of  the  American  cases  seem  to  intimate  a  different 
rule  from  that  which  generally  prevails  in  reference  to  highways, 

1'  Ilailroad  Co.  v.  Davis.  2  Dfv.  &  Ijat.  457;  Dean  v.  Sullivan  Railroad  Co., 
2  Fost.  N.  U.  ;]1G;  Ellicottville  &  Great  Valley  Plank  Road  v.  Buffalo  ii  Titts- 
burg  Railroad  Co.,  20  Uarb.  044;  Weston  v.  Fester,  7  Met.  297.  hi  a  case  in 
Ohio,  where  the  subject  seems  to  have  been  examined  with  care,  it  is  laid  down, 
that  only  such  interest  as  will  answer  the  public  wants  can  be  taken  ;  and  that 
it  can  be  held  only  so  long  as  it  is  nsed  by  the  public,  and  cannot  be  diverted  to 
any  other  purpose.  Gie.sy  v.  Cincinnati,  Wilmington,  &  Zanesville  Railroad  Co., 
4  Ohio  St.  308.  See  also  Hooker  i\  Utica  &  Miiiden  Turnpike  Co.,  12  Wend. 
371;  People  r.  White,  11  I5arb.  20;  HIake  c.  Rich.  34  N.  II.  2S2.  The  title 
of  the  land-owner  is  thus  defined  in  this  last  c;ise:  'J'he  exclusive  right  of  prop- 
erty in  the  land,  in  the  trees  and  herbage  on  its  surface,  and  in  the  minerals 
below  it,  remains  unchanged,  subject  always  to  the  right  of  the  company  to 
construct  and  operate  its  road  in  any  legally  authorized  mode. 

*-  Barclay  v.  Howell.  6  Pet.  408.  Cases  going  to  this  point  are  very  numer- 
ous,  and  they  may  be  found  collected  in  '■)  Kent  Com.  432,  and  notes.  By 
the  civil  law,  it  is  said,  the  soil  of  public  highways  is  in  the  public,  and  the 
law  of  Louisiana  is  the  .same.     Renthorp  c.  Bang,  4  Mart.  La.  !i7. 

"  Koch  V.  Dauphin,  James,  159. 

[*251] 


•260  EMINENT    DOMAIN.  [PART    III. 

in  regard  to  the  title  acquired  by  railway  companies.^*  (c-)  But 
in  one  case^^  it  was  held,  that  the  municipal  authority  of  a  city 
have  no  power  to  grant  permission  to  a  railway  company  to  take 
or  injure  the  property  of  a  citizen  ;  but  the  companies  have  an  im- 
plied authority  to  make  such  side-tracks  and  continuations  at  the 
termini  of  their  road  as  may  be  reasonable  and  necessary  for  the 
transaction  of  their  business  and  the  accommodation  of  the  public, 
and  may  take  private  property  for  these  purposes.  The  right  to 
*  use  and  enjoy  the  street  is  an  appurtenance  to  the  adjoining 
land,  and  an  injury  to  the  appurtenance  is  an  injury  to  the  whole 
f)roperty  ;  and  as  for  such  an  injury  the  statute  prescribes  no 
remedy,  the  land-owner  must  resort  to  his  common-law  remedy. 
11.  But  in  a  case  in  Massachusetts,^^  the  title  seems  to  us 

^*  Wheeler  v.  Rochester  &  Syracuse  Railroad  Co.,  12  Barb.  227;  Hunger  v. 
Tonawanda  Railroad  Co.,  4  Comst.  349;  Coster  v.  New  Jersey  Railroad  Co., 
3  Zab.  227.  The  New  York  Court  of  Appeals,  on  elaborate  examination, 
came  to  the  conclusion,  that  a  deed  to  a  railway  company,  granting  land  to  it 
and  its  successors,  conveys  an  estate  in  fee.  Nicoll  v.  New  York  &  Erie  Rail- 
road Co.,  12  N.  Y.  121.  But  see  Henry  v.  Dubuque  &  Pacific  Railroad  Co., 
2  Iowa,  288.  In  De  Varaigne  v.  Fox,  2  Blatchf.  C.  C.  95,  it  was  held,  that 
where  the  statute  conferred  the  right  to  take  the  fee  of  land,  and  it  was  taken 
on  compensation  accordingly,  the  court  will  not  construe  the  grant  as  a  condi- 
tional fee  or  usufruct,  leaving  a  possible  reverter  to  the  original  proprietor, 
but  will  regard  the  entire  property  as  vested  in  the  grantee  forever;  and  that 
if  any  right  accrues  to  the  former  owner  in  consequence  of  the  change  of  tlie 
destination  of  the  property,  after  the  continuance  of  the  use  for  twenty-six 
years,  it  is  an  equitable  and  not  a  legal  right. 

^5  Protzman  v.  Indianapolis  &  Cincinnati  Railroad  Co.,  9  Ind.  467.  What 
shall  be  a  reasonable  extension  of  the  track  of  a  railway  in  a  city  beyond  the 
depot  is  here  discussed.  It  seems  to  be  more  a  question  of  fact  than  of  law. 
Evansville  &  Crawfordsville  Railroad  Co.  v.  Dick,  9  Ind.  433. 

^^  Ilazen  v.  Boston  &  Maine  Railroad  Co.,  2  Gray,  574.  But  the  com- 
pany has  no  right  to  do  any  act  on  the  land  not  conducive  to  the  use  of 
the  land  for  the  purposes  of  the  grant;  but  of  the  character  of  the  act  the 

(c)  Oregon  Railway  &  Transporta-  643;  s.  c.  aflarmed  79  N.  Y.  293;  Scott 
tion  Co.  f.  Oregon  Real  Estate  Co.,  10  «.  St.  Paul  &  Chicago  Railway  Co., 
Orog.  444;  Williams  v.  Western  Union  21  Minn.  322;  Cliallis  r.  Atchison, 
Railway  Co.,  50  Wis.  71;  Kansas  Topeka,  &  Santa  Fe  Railroad  Co.,  10 
Central  Railway  Co.  r.  Allen,  22  Kan.  Kan.  117.  And  accordingly  in  pro- 
285.  The  legislature  has  power,  how-  ceedings  under  statutes  making  sucli 
ever,  to  provide  that  the  fee  may  be  provisions  a  fee  is  acquired.  Challis 
acquired.  Sweet  i'.  Buffalo.  New  York,  v.  Atchison,  Topeka,  &  Santa  Fe  Rail- 
Si  Philadelphia  Railway  Co.,  13  Hun,  road  Co.,  supra. 
[*252] 


5  CO.]  TITLE    ACQUIRED    BY    COMPANY.  2G1 

tu  be  cxf»licitly  and  fully  stated,  and  the  only  ground  of  distinc- 
tion between  railways  and  connnon  liitrbways,  as  tu  the  title  of 
(he  land  taken,  very  intelligibly  pointed  out.  The  court  here  say, 
"The  right  aequii'ed  by  the  corpf^ration,  although  technically  an 
casement,  yet  requires  fur  its  enjoyment  a  use  of  the  land  per- 
manent in  its  nature  and  practically  exclusive." 

12.  Jlencc,  it  seems  tu  be  admitted  that,  even  in  cases  "where 
the  statute  provides  for  the  taking  of  the  fee,  upon  the  discontinu- 
ance of  the  public  use,  the  land  reverts  to  the  former  owner. ^^ 
j>ut  where  a  special  act  authorizes  a  municipal  corporation  to  hold 
the  fee  of  the  soil  for  the  site  of  an  almshouse,  it  was  held  that 
the  original  owner  and  his  representatives  could  claim  no  exclu- 
sive interest  therein,  or  any  reversionary  title  thereto,  after  the 
removal  of  the  almshouse  to  another  site.^^ 

*  13.  In  some  of  the  cases  in  this  country,  it  has  been  held  that  it 
is  only  the  residuum  of  title  remaining  in  the  corporation,  at  the 
time  a  railway  is  discontinued,  that  reverts  to  the  former  owner  of 
the  hind,  and  that,  in  the  mean  time,  the  company  may  wholly  defeat 
the  reversion,  by  a  conveyance  in  fee-simple  ;  and  this  remarkable 
projwsition  is  distinctly  announced  in  one  case  :  ^^  —  "  Corporations 
have  a  fee-simple  for  purposes  of  alienation,  but  they  have  only  a 
determinable  fee  for  purposes  of  enjoyment." 

14.  If  it  were  said  that  corporations,  created  for  special  pur- 
poses of  intercommunication,  like  railways  and  canals,  and  in- 
vested with  the  sovereign  prerogative  of  eminent  domain  for  these 
jnirposes  only,  had  no  interest,  or  estate,  in  lands  whatever,  ex- 
cept f(jr  the  mere  purpose  of  carrying  on  the  functions  with  which 
they  were  invested  by  the  state,  and  could  neither  use  nor  convey 
the  lauds,  to  be  used  for  any  other  purpose  whatever,  it  would 

company  is  tlie  judjje.  Brainard  r.  Clapp,  10  Cash.  G.  In  this  case,  Suaw. 
C.  J.,  defines  the  title  of  the  railway,  in  lands  taken  for  its  use.     See  Chicago 

6  Mississippi  Railroad  Co.  i'.  Patchin,  16  111.  inS. 

"  People  j^.  White,  11  Barb.  20;  United  States  r.  Harris,  1  Sumner.  21. 
But  by  the  repeal  of  a  charter  the  lands  do  not  revert.  The  franchises  of  the 
corporation  are  resumed  by  the  state,  and  the  railway  remains  jiubiic  jiroperty, 
subject  to  the  management  and  control  of  the  state.  Erie  &  Northeast  Rail- 
road Co.  V.  Casey,  20  Penn.  St.  287.     But  see  Rexford  v.  Knight,  1 1  X.  Y.  308. 

"  Ilayward  v.  New  York,  3  Seld.  314.  So  also  in  regard  to  lands  appro- 
priated to  the  use  of  the  state  canals.     Rexford  c.  Kniglit,  11  N.  Y.  308. 

'9  Nicol  V.  Xew  Y'ork  &  Erie  Railway  Co.,  12  Barb.  4G0.  See  State  v. 
Rives,  5  Ire.  297. 

[*253] 


282  EMINENT   DOMAIN.  [PART   III. 

seem  far  more  in  accordance  with  established  principles  and  gen- 
erally received  notions  upon  the  subject.  In  the  same  case  it  is 
said,  a  grant  to  a  corporation,  created  only  for  a  term  of  years, 
purporting  to  convey  a  fee,  will  not  be  construed  to  convey  only  a 
term  for  years. 

15.  In  all  these  cases  where  the  title  of  the  company  depends 
upon  conditions,  they  must  be  strictly  performed  and  strictly 
construed.-*^  (f?) 

16.  But  where,  by  the  law  of  the  state,  railways,  upon  discov- 
ery that  the  title  they  are  acquiring  may  prove  defective,  have 
the  right  to  take  new  proceedings,  it  was  held,  that  the  discovery 
of  a  mortgage  upon  lands  will  justify  the  abandonment  of  pend- 
ing process,  and  instituting  procedure  under  the  section  which 
allows  them  to  extinguish  incumbrances  on  that  portion  re- 
quired for  their  road.^i  And  the  appraisal  of  land  subject  to  an 
easement  in  the  grantor  is  irregular,  and  no  title  passes.-^ 

17.  After  land  is  condemned  for  the  use  of  a  railway,  the  adju- 
dication *  can  no  more  be  impeached  by  any  collateral  proceeding, 
or  by  evidence,  than  the  judgment  of  any  other  court  of  exclusive 
jurisdiction.23  And  it  was  held,  under  the  Pennsylvania  statute,^* 
that  after  the  award  of  land  damages,  and  payment  of  the  money, 
the  company  become  the  owners  of  the  land  notwithstanding  the 
pendency  of  a  certiorari  to  remove  the  case  into  the  Supreme 
Court.25 

18.  Where  the  Commonwealth  of  Pennsylvania,  in  the  construc- 
tion of  her  public  works,  acquired  the  fee-simple  of  land  taken 
therefor,  either  by  purchase  or  the  right  of  eminent  domain,  and 
the  land  was  devoted  to  the  use  of  a  highway,  a  cessation  of  that 
use  does  not  revest  the  title  in  the  former  owner.^*^ 

20  Bangor  &  Piscataqua  Railroad  Co.  v.  Harris,  8  Me.  533;  Levering  v.  Phila- 
delphia, Gerinantown,  &  Xorristown  Railroad  Co.,  8  Watts  &  S.  459;  Munger 
V.  Tonawanda  Railroad  Co.,  4  Comst.  349;  Carr  v.  Georgia  Railroad  &  Bank- 
ing Co.,  1  Kelly,  524. 

21  In  re  Xew  York  Central  Railroad  Co.,  20  Barb.  419. 
="  Hill  V.  Mohawk  &  Hudson  Railroad  Co.,  3  Seld.  152. 

23  Hamilton  v.  Annapolis  &  Elk  Ridge  Railroad  Co.,  1  Md.  Ch.  107. 
2*  Stat,  of  1829,  §  15. 

25  Schiller  v.  Northern  Liberties  &  Penn  Township  Railroad  Co.,  3  Whart. 
555  ;  .tupra,  §  65;  infra,  §  73. 

26  Haldeman  v.  Pennsylvania  Central  Railroad  Co. ,  50  Penn.  St.  425.   See  also 

Ql)   See  supra,  part  3,  c.  11,  §  3. 

[*254] 


§  "'J-] 


CORPORATE  FRANCHISES  CONDEMNED. 


203 


♦SECTION  VTII. 
Corporate  Franchises  condemned. 


1.  Road  franchise  may  be  taken. 

2.  C'oini)ensatioii  must  be  matk'. 

3.  Railway  fraiiciiise  may    be  taken    for 

aiiotlior  company. 

4.  Rule  (Ictined.     Grant  of  land  for  one 

public  use  must  yield  to  that  of  an- 
other more  urgent. 

6.  6.  Constitutional  restrictions.     Obliga- 

tion of  charter  contract. 

7.  Inviolable   contract  rights  not    taken 

by  implication. 

8.  Legislative    discretion,   former   grant 

not  exclusive. 


9.  Highways  and  railways  compared. 

10.  E.xclusive  character  of  grant  docs  nut 

prcchule  exercise  of   the  right  of 
eminent  domain. 

11.  Exclusiveness  of  the  grant,  a  subor- 

dinate franchise. 

12.  Legislature  cannot  create  a  franchise, 

above  the  reach  of  eminent  domain. 

13.  Legislature  may  apply  streets  in  city 

to  any  public  use. 

14.  Compensation    in    such  cases    to  the 

owner  of  the  fee.   Converting  canal 
into  railway. 


§  TO.  1.  The  franchise  of  a  turnpike,  or  bridg-e,  or  other  similar 
corporation  may  be  taken  for  a  free  road,  or  for  a  railway,  which, 
as  we  have  said,  is  an  improved  highway.^  («)     And  it  will  make 

as  to  proceedings  under  Lateral  llailroad  Acts  of  Pennsylvania,  Brown  r.  Peter- 
son, 40  Penn.  St.  ;}73 ;  Boyd  v.  Negley,  40  Peun.  St.  o77 ;  Pittsburg  v.  Pennsylva- 
nia Railroad  Co.,  48  Penn.  St.  355.  It  seems  scarcely  necessary  to  state  that 
the  final  judgment  of  condemnation  and  the  payment  of  the  award  vests  in  the 
company  the  absolute  right  to  use  the  land  embraced  in  the  judgment  for  all 
its  legitimate  purposes.  Dodge  v.  Burns,  G  Wis.  514;  Burns  v.  .Milwaukee  & 
Mississippi  Railroad  Co.,  9  Wis.  450.  And  the  acceptance  of  the  value  of  the 
land  by  the  land-owner,  however  the  amount  may  have  been  ascertained,  is  an 
acquiescence  in  the  taking,  as  much  as  a  conveyance  by  deed.  lb.  He  cannot 
accept  the  amount  of  an  award  of  damages,  and  also  appeal  therefrom.  Missis- 
sippi &  Mi.ssouri  Railroad  Co.  v.  Byington,  14  Iowa.  572.  But  where  the  parties 
refer  tiie  question  of  tiie  amount  of  damages,  and  the  award  is  that  the  amount 
be  paiil  simultaneously  with  the  making  of  conveyance,  and  the  company  offers 
to  i)erform  but  the  owner  declines,  he  cannot,  many  years  afterwards,  maintain 
an  action  against  the  company  for  not  performing.  Smith  v.  Boston  &  Maine 
Railroad  Co,,  0  Allen,  'JOi*. 

^  Armington  v.  Barnet,  15  Vt.  745;  West  River  Bridge  v.  Dix,  0  How.  5t>7; 
s.  c.  10  Vt.  446;  AVhite  River  Turnpike  Co.  v.  Vermont  Central  Railroad  Co., 
21  Vt.  594;  Boston  AVater  Power  Co.  v.  Boston  &  AVorcester  Railroad  Co.,  23 
Pick.  300;  Central  Bridge  Corporation  v.  Lowell,  4  Cray,  474. 

(fi)  Lands  taken  for  purposes  of  a  wards  for  a  highway.  Prospect  Park  & 
station   cannot    be  condemned   after-     Coney  Island  Railroad  Co.  v.  William- 

[*25o] 


264  EMINENT   DOMAIN.  [PART   III. 

no  difference  that  the  franchise  is  situate  partly  within  the  limits 
of  different  states,  as  in  the  case  of  a  bridge  across  a  river 
which  forms  the  divisional  line  between  different  states.  But 
the  proceedings  in  one  state  can  only  take  what  lies  within  its 
limits.^ 

2.  But  compensation,  either  for  the  entire  franchise,  which  is 
the  more  common  course  and  ordinarily  the  only  just  mode  of 
procedure,  or  for  the  special  injury,  must  be  made.^  But  it  is  no 
objection  to  the  validity  of  an  act  of  the  legislature,  allowing  a 
railway  to  carry  its  track  across  the  land  of  a  mill-dam  company, 
incorporated  by  the  legislature,  that  it  contains  no  express  provi- 
sion for  compensation  to  such  mill-dam  company.  This  is  implied, 
as  in  other  cases,  where  land  is  taken."*  And  the  same  implica- 
tion has  been  held  to  extend  to  the  case  of  a  subsequent  grant  of 
a  railway  which  materially  depreciated  the  use  and  value  of  a 
prior  grant  of  a  bridge.^  But  it  is  the  more  commonly  received 
opinion,  that  a  subsequent  grant,  which   only  incidentally  *  oper- 

2  Crosby  v.  Hanover,  36  N.  H.  404. 

8  West  River  Brids^e  v.  Dix,  6  How.  507;  Boston  "Water  Power  Co.  v.  Bos- 
ton &  Worcester  Railroad  Co.,  22  Pick.  360.  And  see  infra,  note  (b).  But 
see  11  Leigh,  42. 

*  Boston  A\'ater  Power  Co.  v.  Boston  &  Worcester  Railroad  Co.,  supra. 

^  Enfield  Toll-bridge  Co.  v.  Hartford  &  New  Haven  Railroad  Co.,  17  Conn. 
4.54;  s.  c.  17  Conn.  40. 

son,  91  N.  Y.  552;   St.  Paul  Union  On  repeal  of  a  statute  incorporating 

Depot  Co.  V.  St.  Paul,  30  Minn.  359;  a  railway  company,  the  legislature  may 

Atlanta  v.  Central  Railroad  &  Bank-  permit  a  new  company  incorporated 

ing  Co.,  53  Ga.  120.  in.stead  of  the  old  one  to  take  its  fran- 

And  in  a  proper   ca.se  any  corpo-  chi.ses.      Greenwood    v.   Freight   Co., 

rate   franchi.se  may  be  taken  in   the  105  U.  S.  13.     But  though  a  franchise 

exercise  of  the  right  of  eminent  do-  may  be  taken,  the  right  is  not  to  be 

main.     Philadelphia  &  Gray's   Ferry  implied  except  in  a  ca.se  of  clear  ne- 

Passenger  Railway  Co.'s  Appeal,  102  cessity.     Penn.sylvania  Railroad  Co.'s 

Penn.  St.  123.  But  not  without  statute.  Appeal,  93  Peun.  St.  I.jO. 
Baltimore  &  Oiiio  &  Chicago  Railroad  The  right  of  one  railroad  company 

Co.  V.  North,  23   Am.  &  Eng.  Railw.  to  condemn  a  part  of  the  lands  of  an- 

Cas.  30.     See  In  re  New  York,  Lack-  other  is  open  for  trial  in  condemnation 

awanna,  &  Western  Railroad  Co.,  99  proceedings.     Cumberland  &  Pennsyl- 

N.   y.  12.      And  statutory  intent  to  vania   Railroad   Co.   v.    Pennsylvania 

that  end  is  not  to  be  implied.     Balti-  Railroad  Co  ,  57  ^Md.  207.     And  see 

more  &  Oliio  &  Chicago  Railroad  Co.  Brown  v.  Philadelphia,  Wilmington,  & 

V.  North,  stipra.  Baltimore  Railroad  Co.,  58  Md.  oi'J. 
[*2o6] 


§T0.] 


CORPORATR  FRANCHISES  CONDEMNED. 


2G5 


ati'S   injuriously  to  an  earlier  ono,  docs  not  rcfjuirc  compcnsafion 
to  be  made  for  such  injury,  unless  expressly  so  provided.'^ 

3.  So  also  may  the  franchise  of  one  railway  l>e  taken  for  the 
construction  of  another  railway."  (/*) 

«  White  River  TiuMipike  Co.  v.  Vermont  Central  Railroad  Co.,  21  Vt.  5r»4. 

'  Gkikh,  .F.,  in  Richmond  Railroad  Co.  v.  Louisa  Railroad  Co.,  l;i  How.  SI, 
82;  8.  c.  2  Redf.  Am.  Raihv.  Cas.  GOO;  Newcastle  &  Richmond  Railroad  Co. 
V.  Peru  &  Indianapolis  Railroad  Co.,  3  Ind.  401. 


(h)  Rut  of  course  the  property  of  a 
railway  company  may  not  be  taken 
without  compensation.  The  property 
rij,'hts  of  such  companies  are  as  invio- 
lable as  those  of  persons.  Grand  Rap- 
ids, Newaygo,  &c.  Railroad  Co.  v. 
Grand  Rapids  &  Indiana  Railroad  Co., 
35  Mich.  20.5;  Lake  Shore  &  Michigan 
Southorn  Railway  Co.  v.  Chicago  & 
Western  Indiana  Railroad  Co.,  100 
111.  21.  Nor  may  land,  necessary  to  the 
enjoyment  of  the  essential  franchises 
of  sucii  a  company,  be  taken  without 
special  legislative  authority.  Dublin 
&  Droglieila  Railway  Co.  v.  Navan  & 
Kingscourt  Railway  Co.,  5  Ir.  Eq.  30;?; 
Lake  Shore  &  Michigan  Southern  Rail- 
way Co.  r.  New  York,  Chicago,  &  St. 
Louis  Railway  Co.,  8  Fed.  Rep.  858; 
In  re  Cleveland  &  Pittsburg  Railroad 
Co.  2  Pittsb.  3-18.  Not  even  for  a 
joint  n.se  with  the  elder  company. 
Central  City  Horse  Railway  Co.  v. 
Fort  Clark  Horse  Railway  Co.,  81  111. 
523.  But  land  acquired  by  the  exer- 
cise of  the  right  of  eminent  domain, 
not  necessary  to  the  exercise  of  tiie 
francliise,  may  be  taken  by  another 
company  by  the  exercise  of  the  same 
riglit.  North  Carolina  Railroad  Co.  v. 
Carolina  Central  Railway  Co.,  83  N.  C. 
489:  Peoria,  Pekin,  &  Jacksonville  Rail- 
road Co.  V.  Peoria  &  Springfield  Rail- 
road Co.,  00  111.  174.  And  a  way  may 
be  taken  across  tlie  way  of  another 
road.  Great  North  of  England  Rail- 
^vay  Co.  v.  Clarence  Railway  Co.,   1 


Coll.  507 ;  St.  Louis,  Jacksonville,  & 
Chicago  Railroad  Co.  v.  Springfield 
&  Northwestern  Railroad  Co.,  'M  111. 
274.  Rut  not  witliout  express  author- 
ity. Clarence  Railway  Co.  v.  Great 
North  of  England  Railway  Co.,  4  Q.  B. 
40.  In  making  a  crossing,  temporary 
scaffolding  may  be  jilaced  on  the  land 
of  the  elder  company.  Great  North 
of  England  Railway  Co.  v.  Clarence 
Railway  Co.,  1  Coll.  507.  As  to  dam- 
ages for  crossings,  see  St.  Louis,  Jack- 
.sonville,  &  Chicago  Railroad  Co.  v. 
Springfield  &  Nortli western  Railroad 
Co.,  90  111.  274;  Lake  Shore  &  Michi- 
gan Southern  Railway  Co.  v.  Chicago 
&  Western  Indiana  Railway  Co.,  100 
111.  21.  The  condemnation  of  lands 
of  a  company  which  are  not  used 
for  railroad  2>iirposes,  for  use  in  the 
construction  of  another  road,  will  not 
avail  in  condemnation  of  the  franchise. 
The  right  of  way  and  tiie  power  to 
cross  the  track  of  the  former  road  are 
all  that  will  be  accpiired.  State  i'. 
Eastern  &  Amboy  Railroad  Co.,  30 
N.  J.  Law,  180.  A  general  grant  of 
power  to  establish  a  road  across  a 
track,  thougii  sufficient  to  warrant  the 
laying  of  a  road  wherever  public  ne- 
cessity may  demand,  does  not  include 
)iower  to  appropriate  the  property  of 
the  company  in  such  a  w.ny  a.s  to  de- 
stroy or  greatly  injure  its  franchise. 
Hannibal  v.  Hannibal  &  St.  Jo.seph 
Railway  Co.,  49  Mo.  480.  For  the 
location  of  a  way  across  a  track  the 
[*2oGJ 


2GG  EMINENT    DOMAIN.  [PART   III. 

4.  In  one  case  the  law  upon  this  suhjcct  is  thus  stated,  by 
SiiAW,  C.  J. :  "  The  court  arc  of  opinion,  that  it  is  competent 
for  the  legislature,  under  the  right  of  eminent  domain,  to  grant 
authority  to  a  railway  corporation  to  take  a  highway  longitu- 
dinally in  the  construction  of  their  road.'  The  power  of  eminent 
domain  is  a  high  prerogative  of  sovereignty,  founded  upon  public 
exigency,  according  to  the  maxim,  Salus  reipuhlicce  lex  suprema 
est,  to  which  all  minor  considerations  must  yield,  and  which  can 
only  be  limited  by  such  exigency.  The  grant  of  land  for  one  pub- 
lic use  must  yield  to  that  of  another  more  urgent."  ^ 

5.  The  great  question  of  the  inviolability  of  corporate  franchises, 
which  we  shall  have  occasion  to  discuss  more  at  large  hereafter,^ 
is  no  doubt  to  a  certain  extent  involved  here.  For,  upon  gen- 
eral principles  of  legislative  authority,  there  could  be  no  question 
that  a  corporation,  which  is  the  mere  creature  of  the  legislature, 
might  be  at  once  and  unconditionally  extinguished,  by  repeal  of 
the  charter.  This  is  confessedly  within  the  power  of  the  legisla- 
tive authority  of  the  British  parliament ;  and  the  legislative 
authority  of  the  parliament  of  Great  Britain  is  no  more  extensive 
than  that  of  the  legislatures  of  the  American  states,  aside  from 
restrictions  contained  in  the  constitutions  of  the  United  States 
and  of  the  several  states-^*^ 

6.  The  only  limitation  upon  this  power  over  private  corpora- 
tions, in  most  of  the  states,  perhaps  in  all,  is  found  in  that  pro- 
vision of  the  United  States  Constitution  which  prohibits  the 
legislatures  of  the  several  states  from  passing  any  law  impairing 
the  *  obligation  of  contracts.     And  the  proper  limits  of  this  re- 

8  Springfield  v.  Connecticut  River  llaih-oad  Co.,  4  Cush.  63;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  299.  See  also,  on  the  general  subject,  Chesapeake  &  Ohio 
Canal  Co.  v.  Baltimore  &  Ohio  Railroad  Co.,  4  Gill  &  J.  1;  Forward  v.  Hamp- 
shire &  Hampden  Canal  Co.,  22  Pick.  462,  where-  the  prior  company  is  held 
bound  by  acquiescence  in  the  transfer  of  its  franchises  to  another  company. 
Irvin  V.  Turnpike  Co.,  2  Penn.  4GG ;  Rogers  v.  Bradshaw,  20  Johns.  735; 
Backus  V.  Lebanon,  11  X.  H.  19. 

9  Infra,  §231. 

^°  Dartmouth  College  v.  Woodward,  4  AVheat.  518. 

company  is  entitled  to  damages;  but  Deering,  23  Am.  &  Eng.  Railw.  Cas. 

interference  with  the  running  of  trains,  51.     Contra,  Chicago  &  Western  In- 

the  inconvenience  and  increased  risk  diana  Railroad  Co.  v.  Englewood  Con- 

and  expense,  are  not  to  be  considered,  necting  Railroad  Co.,  23  Am.  &  Eng. 

Portland  &  Rochester  Railroad  Co.  v.  Railw.  Cas.  56. 
1*251} 


§  70.]         CORPORATE  FRANCHISES  CONDEMNED.  207 

striction,  in  rci^ard  to  corporations,  is  not  altoL'ctlicr  well  dofincd 
in  the  dilTerent  opinions  of  the  several  JLid^a-s  of  the  supreme 
national  tribunal  upon  this  subject ;  nor  is  there  any  thin<5  aj)- 
proacliing  unanimity  among  them. 

7.  i)ut  it  may  perhaps  be  regarded  as  settled,  for  the  time  at 
least,  that  where  exclusive  privileges  are  conferred  Upon  j)rivatc 
corporations,  by  express  words  or  necessary  implication,  the  grant 
is  irrevocable  and  inviolable.  But  that  the  grant  of  any  privilege 
or  franchise  carries  no  implied  exclusion  of  similar  privileges 
and  franchises  being  conferred  upon  other  ]jcrsons,  natural  or 
corporatc.^^  (c} 

8.  The  legislature  may  in  all  instances  determine  wlicn  and 
where  the  public  necessities  require  additional  facilities,  of  a 
similar  or  analogous  character,  where  the  former  grant  is  not 
exclusive.^^ 

9.  And  in  some  cases  of  exclusive  and  perpetual  grants,  for 
common  highways  or  bridges,  it  has  been  held,  that  this  did  not 
preclude  the  legislature  from  granting  railways  and  railway 
bridges  within  the  limits  of  the  former  grant. ^^  In  the  case  just 
referred  to,'^  the  court  held,  that  a  perpetual  grant  of  a  toll- 
bridge  across  tlic  Cape  Fear  River,  which  in  terms  subjected  all 
j)crsons  to  a  penalty  foi*  transporting  persons  or  property  across 
that  river  in  any  other  manner,  within  six  miles  of  the  plaintiff's 
bridge,  would  not  subject  the  defendant's  company  to  the  penalty 
for  carrying  persons  and  property  across  the  river,  u})on  their 
road,  l»y  means  of  a  bridge  erected  within  the  six  miles;  that  the 
grant  was  intended  to  be  exclusive  only  as  to  all  modes  of  travel 
and  transi)ortation  then  known,  but  not  to  exclude  all  improvc- 
nieuts  thereon,  in  all  future  time.^^ 

"  Charles  River  IJridge  v.  Warren  Bridge,  11  Tot.  4'20;  Thorpe  v.  Rnt- 
laiul  it  Burlington  Railroad  Co.,  27  Vt.  lit);  s.  c.  2  Redf.  Am.  Railw.  Cas. 
5S7;  Boston  &  Lowell  Railroad  Co.  r.  Salem  &  Lowell  Railroad  Co.,  2  (Jray,  1  : 
Mohawk  Bridge  Co.  v.  Utica  &  Schenectady  Railroad  Co.,  0  Paige,  551;  llml- 
son  &  Delaware  Canal  Co.  v.  New  York  &  Erie  Railroad  Co.,  9  Paige,  323. 

»^  Mcllee  V.  Wilmington  &  Raleigh  Railroad  Co.,  2  Jones,  N.  C.  ISG.  But 
see  Knfield  Bridge  Co.  v.  Hartford  &  New  Haven  Railroad  Co.,  17  Conn.  40,  451. 

'"  But  this  distinction  is  certainly  not  attempted  to  be  maintained  in  the 
majority  of  the  cases  on  this  subject,  either  in  England  or  in  this  country. 
Itifnx,  §  231  ct  se(i. 

(0  St.  Clair  County  Turnpike  Co.  West  Jersey  Railroad  Co  ,  101  U.  S. 
r.  Illinois,  90  U.  S.  03;   Thomas   v.     71. 

[•2.37] 


2(38  EMINENT    DOMAIN.  [PART   III. 

10.  But  the  exclusive  character  of  a  corporate  grant  will  not 
preclude  the  power  to  take  tlie  franchise,  upon  making  compensa- 
tion, *  under  the  right  of  eminent  domain,  the  stipulation  in  the 
charter,  that  the  grant  shall  be  exclusive  of  all  others,  being  sub- 
ject to  the  same  law  as  other  property,  whether  in  possession  or 
action  ;  all  wliich  is  confessedly  subject  to  the  exercise  of  the 
right  of  eminent  domain,  by  the  sovereign.^* 

11.  It  has  sometimes  been  characterized  as  a  refinement  or  an 
invention,  to  identify  the  covenant,  in  the  charter  of  a  private  cor- 
poration, that  the  grant  shall  be  exclusive  of  all  others,  with  the 
charter  itself,  and  thus  subject  it  to  the  law  of  eminent  domain. 
But  it  seems  to  us  entirely  a  sound  view,  in  all  cases  where  the 
whole  franchise  of  the  corporation  is  proposed  to  be  taken,  and 
that  the  charge  of  refinement  is  rather  to  be  laid  at  the  door  of 
such  as  attempt  to  raise  a  distinction  between  the  exclusiveness 
of  the  grant  and  the  grant  itself,  in  order  to  preserve  the  in- 
violability of  the  former,  which  is  the  lesser  and  subordinate 
franchise,  when  the  latter,  and  paramount,  and  vital  franchise  of  a 
corporation  is  confessedly  subject  to  tlie  law  of  eminent  domain.^^ 

12.  It  is  intimated  in  West  River  Bridge  Company  v.  Dix,  by 
Woodbury,  J.,  that  if  the  charter  of  the  cor|)oration  contained  an 
express  stipulation  against  the  exercise  of  the  right  of  eminent 
domain  upon  the  corporation,  this  might  secure  the  franchise. 
But  this  is  certainly  not  the  prevailing  opinion. ^"^  (cZ) 

"  Enfield  Toll  Bridge  Co.  v.  Hartford  &  Xew  Haven  Railroad  Co.,  17  Conn. 
40,  454.  This  doctrine  has  been  repeatedly  asserted  in  all  the  courts  of  the 
country.  And  the  right  to  take  the  franchise  of  another  corporation,  by 
parity  of  reason,  carries  the  right  to  impair  another  franchise  to  any  extent  on 
making  indemnity.     In  re  Kerr,  42  Barb.  119. 

15  West  River  Bridge  Co.  r.  Dix,  16  Vt.  446;  s.  c.  6  How.  507,  539,  per 
Woodbury,  J.  who  argues  that  it  is  difficult  to  comprehend  why  the  exclusive- 
ness of  the  grant  to  a  private  corporation  should,  on  principle,  be  any  more 
inviolable  by  legislative  authority  than  any  other  part  of  the  corporate  fran- 
chise. It  is  only  as  property  that  it  is  valuable,  or  that  it  is  protected  at 
all.  And  all  property  is,  in  cases  of  proper  necessity,  subject  to  the  law  of 
eminent  domain.  It  is  very  questionable  whether  this  law  should  be  held  to 
extend  to  tho.se  portions  of  public  works  which  may  always  be  obtained  in  the 
market,  and  where,  by  consequence,  there  is  no  practical  necessity. 

1®  In  regard  to  the  right  of  eminent  domain,  it  seems  now  to  be  conceded, 


(f/)  See  supra,  notes  (a),  (b). 
[*258] 


§  70.]         CORPORATE  FRANCHISES  CONDEMN'ED.  209 

*  13.  The  fee  of  the  streets  of  a  city,  where  it  has  J)ccn  acquired 
by  tlie  municipality  under  the  right  of  eminent  domain,  becomes 
*  a  public  trust  for  general  public  purposes,  and  is  under  the  un- 
qualified control  of  the  legislature,  and  any  legislative  appropria- 
tion of  it  to  public  use  is  not  to  be  regarded  as  the  a})pro})iiation 
of  private  property,  so  as  to  require  compensation  to  the  city  or 
municipality  to  render  it  constitutional.^^  The  mere  possibility 
*of  reverter  to  the  original  owner,  or  his  heirs  or  grantees,  is  n(jt 
regarded  in  such  cases  as  any  appreciable  interest  requiring  to  be 
compensated.^' 

14.  Courts  seem  sometimes  to  have  entertained  doubts  if  it  is 
competent  for  a  railway  company  to  appropriate  the  franchise  of 
a  canal  comi>any  along  the  same  line  so  as  to  supersede  the  canal 
by  its  own  works.^^  But  we  apprehend  there  can  be  little  doubt 
on  that  point ;  and  the  case  last  cited  holds,  that  if  this  is 
attempted  and  acquiesced  in  by  the  canal  company,  it  is  not  com- 
petent for  the  owner  of  the  fee  in  the  land  to  claim  a  reverter  of 
the  title  by  reason  of  the  want  of  power  in  the  railway  company. 
The  most  the  owner  of  the  fee  could  claim  in  such  case  is  to 
recover  compensation  for  any  additional  land  taken,  and  for  any 
additional  burden  imixjsed  upon  the  land  appropriated  to  the 
canal,  as  well  as  for  any  additional  damage  to  the  adjoining  lands 
of  the  same  owner.^^  (c) 

that  no  legislature,  on  anj'  consideration  or  pretence  whatever,  can  deprive  a 
future  legislature  of  its  exercise,  to  the  absolute  anniliilation  of  corporate 
franchises,  on  just  and  adequate  compensation.  In  Backus  v.  Lebanon,  11 
N.  II.  19,  Parker,  C.  J.,  gave  a  very  able  exposition  of  the  question.  See 
also,  to  the  same  effect,  the  opinion  of  Mr.  Justice  Grier,  in  the  United  States 
Circuit  Court,  in  IMilnor  v.  Xew  Jersey  Railroad  Co.,  0  Law  Reg.  G,  7;  and 
Crosby  v.  Hanover,  20  Law  Rop.  G4G;  s.  c.  3G  N.  H.  40L 

"  People  I'.  K(M-r,  27  X.  Y.  188.  See  also  Philadelphia  &  Reading  Railroad 
Co.  V.  IMiiladolpliia,  17  Penii.  St.  325, 

^^  Hatch  V.  Cincinnati  &  Indiana  Railroad  Co.,  IS  Ohio  St.  92. 

CO  The  owner  of  the  fee  is  enti-  Am.  &  Eng.  Railw.  Cas.  1;  Lafayette, 
tied  to  compensation.  Pittsburg  &  Muncie  &  Bloomington  Railroad  Co. 
Lake  Erie  Railroad  Co.  v.  Bruce,  10     v.  Murdock,  GS  Ind.   137. 

[*259-*261] 


270 


EMINENT   DOMAIN. 


[part   III. 


SECTIOX    IX. 


Compensation :  Mode  of  Estimating. 


1.  Xiiture  of  the  general  inquiry. 

2.  Damage  and   benefits  shared    by  the 

public  not  to  be  considered. 

3.  General  rule  for  estimating  compen- 

sation. 

4.  Prospective  as  well  as  present   dam- 

ages assessed. 

5.  In  some  states  value  "  in  money  "  is 

the  measure  of  compensation. 

6.  7.  Damage  and  benefits  cannot  be  con- 

sidered in  such  cases. 

8.  Under  the  English  statute  consequen- 

tial injuries  to  lands  not  taken  com- 
pensated. 

9.  Compensation  in  view  of  farm  accom- 

modations. 


10.  Benefits   and    damage,    if    required, 

must  be  stated, 
n.  1.3.  Course  of  the  trial  in  estimating 
land  damages. 

11.  Items  of  damage  not  indispensable 

to  be  stated. 

12.  In  contracts  for  land  statutory  privi- 

leges, to  be  secured  must  be  stated. 

13.  Questions  of  doubt  referred   to  ex- 

perts. 

14.  Special    provisions    as    to    crossing 

streets  only  permissive. 

15.  Award  of  farm  accommodations  with- 

in a  certain  time,  time  of  the  es- 
sence of  the  award. 


§  71.  1.  The  inquiry  in  regard  to  what  compensation  shall  be 
made  for  land  taken  for  public  works  would,  on  the  face  of  it, 
seem  to  Ije  a  very  simple  one.  One  would  naturally  suppose  the 
value  of  the  land  taken  or  the  damage  sustained  to  be  the  fair 
measure  of  compensation,  and  that  there  could  be  no  serious  diffi- 
culty in  ascertaining  the  amount. 

2.  But  in  consequence  of  numerous  ingenious  speculations  in 
regard  to  possible  advantages  and  disadvantages  arising  from  the 
public  works  for  whicli  lands  are  taken,  the  whole  subject  has 
become,  in  this  country  especially,  involved  in  more  or  less  uncer- 
tainty. All  the  cases  seem  to  concur  in  excluding  mere  general 
and  public  benefit,  in  which  the  owner  of  land  shares  in  common 
with  the  rest  of  the  inhabitants  of  the  vicinity,  from  being  taken 
into  consideration  in  estimating  compensation,  (a) 

{n)  Pittsburg,  Bradford,  &  Buffalo  58  Mo.  491 ;   Hosher  v.  Kansas  City, 

Railroad  Co.    v.  ^IcCloskey,  23  Am.  St.  Joseph,  &  Council  Bluffs  Railroad 

&  Eng.   Railw.   Cas.  86;   Chicago  &  Co.,   60  Mo,   303;    Tebo    &   Neocho 

Evanston  Railway  Co.   v.   Blake,  24  Railway  Co.    v.  Kingsberry,  61  Mo. 

Am.  &  Eng.  Railw.  Cas.  288.  51;  Wyandotte,  Kansas  City.  8c  Xorth- 

But   special    benefits,    such    as   are  western    Railroad   Co.    v.   \V"aldo,   70 

personal  to  the  owner,  are  to  be  con-  Islo.    C2!) ;    Alden    v.    White    Moun- 

sidered.     Quincy,  Missouri,  &  Pacific  tains    Railroad  Co.,    55   N.   H.   413; 

Railroad  Co.  v.   Ridge,  57  Mo.  599;  Raleigh  &  Augusta  Air  Line  Railroad 

Mississippi  River  Bridge  Co.  v.  Ring,  Co.  v.  Wicker,  74  N.  C.  220;  Chapman 
[*261] 


■!•] 


COMPENSATION  :    MODE    OF   ESTIMATING. 


271 


3.  It  has  been  said,  the  appraisers  arc  not  to  go  into  conjectural 
and  speculative  estiniatiuns    of   consc(iuential  damages,^  {li)  but 

1  Meacham  v.  Fitcliburg  Railroad  Co.,  4  Cusli.  '201;  s.  c.  1  Redf.  Am. 
Railw.  Cas.  27G.  Uptoi,  r.  South  Reading  Branch  Raihoad  Co.,  8  Cash.  GOO; 
Albany  NorthL-rn  Railroad  Co.  v.  Lansing,  10  Barb.  GS;  Canandaigua  & 
Niagara  Railroad  Co.  v.  Payne,  IG  Barb.  273;  Greenville  &  Columbia  Kail- 
road  Co.  V.  Partlow,  5  Rich.  428;  White  v.  Charlotte  &  South  Carolina  Rail- 
road Co.,  G  Rich.  47;  Alton  &  Sangamon  Railroad  Co.  v.  Carpenter,  14  111. 
inO;  Syinonds  v.  Cincinnati,  14  Ohio,  147;  Brown  v.  Cincinnati,  14  Ohio, 
541;  Mclntire  v.  State,  5  Blackf.  384;  State  v.  Digbj',  5  Blackf.  543;  James 
River  &  Kanawha  Co.  v.  Turner,  9  Leigh,  313 ;  Schuylkill  Co.  v.  Thoburn, 
7  S.  &  R.  411.  A  jury,  in  estimating  the  damages,  may  consider  the  effect 
the  construction  of  the  railway  will  have  in  diminishing  deposits  of  sediment, 
made  by  a  river  in  high  water  flowing  on  the  land  and  greatly  enriching  it. 
Concord  Railroad  Co.  r.  Greeley,  23  N.  XL  237.  Also  the  deterioration  of 
adjacent  land,  not  taken,  either  for  agriculture,  or  for  sale  for  building  lots; 
and  the  risk  from  fiie,  cave  of  family  and  stock,  inconvenience  caused  by 
embankments,  excavations,  and  obstructions  to  the  free  use  of  buildings. 
Sonierville  &  Easton  Railroad  Co.  v.  Doughty,  2  Zab.  495.  The  increase  or 
decrease  in  the  price  of  the  remaining  land,  and  tlie  expense  of  fencing,  are 
to  be  taken  into  the  account,  in  assessing  compensation.     Greenville  &  Colum- 


V.  Oshkosh  &  Mississippi  River  Rail- 
road Co.,  33  Wis.  029;  Philadelphia 
&  Erie  Railroad  Co.  r.  Cake,  95  Penn. 
St.  139;  Chicago  &  Mexican  Central 
R;iihvay  Co.  v.  Hitter,  10  Am.  &  Eng. 
Railw.  Cas.  202;  New  Orleans  Pacific 
Railway  Co.  v.  Gay,  31  La.  An.  430; 
Todd  f.  Kankakee  &  Illinois  River 
Railroad  Co.,  78  111.  530. 

This  does  not  include  general  ad- 
vance in  value  of  land.  Mississippi 
Railway  Co.  v.  McDonald,  12  Ileisk. 
54.  But  anything  and  everything  con- 
nected with  the  general  improvement 
which  tends  to  an  increase  of  value  or 
usefulness,  &c.  Pittsburg  &  Lake  Erie 
Railroad  Co.  v.  Robinson,  95  Penn.  St. 
120.  Although  it  affects  other  lands 
ill  the  vicinity.  Credit  Valley  Rail- 
way Co.  r.  Spragge,  24  Grant  Ch. 
231. 

As  to  what  may  not  be  allowed  by 
way  of  benefits,  see  Swayze  v.  New 
Jersey  Midland  Railway  Co.,  30  N.  J. 
Law,  205;    St.    Louis,    Arkansas,  & 


Texas  Railroad  Co.  c.  Anderson,  39 
Ark.  107;  'J  odd  v.  Kankakee  &  Illi- 
nois River  Railroad  Co.,  supra;  Cin- 
cinnati &  Springfield  Railway  Co.  v. 
Longworth,  30  Ohio  St.  108.  See, 
also,  Pennsylvania  &  New  York  Rail- 
road Co.  V.  Bunnell,  81  Penn.  St.  414, 
In  Munkwitz  v.  Ciiicago.  Milwaukee, 
&  St.  Paul  Railway  Co.,  22  Am.  & 
Eng.  Railw.  Cas.  151,  it  is  held  that 
the  possible  future  drainage  of  land 
(part  of  which  is  taken)  to  the  en- 
hancement of  its  value,  po.'ssibility  cut 
off  by  the  taking,  is  too  remote  and 
problematical.  As  to  damages  which 
are  general  and  shared  by  all  the  pub- 
lic, see  Chicago  &  Pacific  Railroad  Co, 
V.  Stein,  75  lU.  41. 

(/>)  Thus  they  are  not  to  consider 
the  danger  to  trains  or  persons. 
^IcReynolds  r.  Baltimore  &Ohio  Rail- 
road Co.,  100  111.  152.  But  see  In  re 
New  York,  Lackawanna,  &  Western 
Railway  Co..  29  Ilun.  1.  See  further, 
infra,  §  74. 

[*2r.i] 


272  EMINENT   DOMAIN.  [PART   III. 

confine  *  themselves  to  estimating  the  vahie  of  the  land  taken  to 
the  owner.  Tliis  is  most  readily  and  fairly  ascertained  by  deter- 
mining the  value  of  the  whole  land,  without  the  railway,  and  of 
the  portion  remaining  after  the  railway  is  built.  The  difference 
is  the  true  compensation  to  which  the  party  is  entitled.^  {a} 

bia  Railroad  Co.  v.  Partlow,  5  Rich.  428.  The  value  of  the  land  taken,  con- 
sidering its  relation  to  the  land  from  which  it  is  severed,  is  to  to  be  given, 
and  such  further  sura  as  the  incidental  injury  to  the  land  not  taken,  from  the 
construction  of  the  road,  exceeds  the  incidental  benefits.  Nashville  Railroad 
Co.  V.  Dickerson,  17  B.  Monr.  173,  180.  Louisville  &  Nashville  Railroad  Co. 
V.  Thompson,  18  B.  Monr.  735. 

2  Troy  &  Boston  Railroad  Co.  v.  Lee,  13  Barb.  169,  171;  In  re  Furman 
Street,  17  Wend.  G19;  Canal  Co.  v.  Archer,  9  Gill  &  J.  480;  Parks  v.  Boston, 
15  Pick.  198;  Somerville  &  Eastou  Railroad  Co.  v.  Doughty,  2  Zab.  495; 
Hornstein  v.  Atlantic  &  Great  Western  Railroad  Co.,  51  Penn.  St.  87;  San 
Francisco,  Alameda,  &  Stockton  Railroad  Co.  v.  Caldwell,  31  Cal.  367.  See, 
also,  Wilmington  &  Reading  Railroad  Co.  v.  Stauffer,  60  Penn.  St.  374;  Pitts- 
burg, Fort  Wayne,  &  Chicago  Railroad  Co.  v.  Gilleland,  56  Penn.  St  445; 
Walker  v.  Old  Colony  &  Newport  Railroad  Co.,  103  Mass.  10;  and  Arnold  v. 
Hudson  River  Railroad  Co.,  49  Barb.  108,  as  to  damage  to  land  not  taken. 
See  also  In  re  Utica  Railroad  Co.,  56  Barb.  456.  But  no  account  is  to  be  taken, 
in  estimating  land  damages,  of  the  benefit  the  railway  may  have  been  to  other 
property  of  the  plaintiff,  disconnected  with  that  taken.  Railroad  Co.  v.  Gilson, 
8  Watts,  243;  but  see  Columbus,  Piqua,  &  Indiana  Railroad  Co.  v.  Simpson,  5 
Ohio  St.  251;  Rochester  &  Syracuse  Railroad  Co.  v.  Budlong,  6  How.  Pr.  467; 
Sater  v.  Burlington  &  Mount  Pleasant  Plank  Road  Co.,  1  Iowa,  386.  The  value 
of  the  land,  at  the  time  of  trial,  or  at  any  time  subsequent  to  the  construction 
of  the  work,  cannot  be  referred  to  in  determining  the  benefits  conferred  on 
the  land  not  taken.     Indiana  Central  Railroad  Co.  v.  Hunter,  8  Ind.  74. 

(c)    St.  Louis,  Arkansas,  &  Texas  &   ^Missouri    Valley   Railroad    Co.    v. 

Railroad    Co.    v.  Anderson,    39    Ark.  Whalen,     11    Neb.    585;     Pittsburg, 

167;  East  Brandywine  &  Waynesburg  Bradford,  &  Buffalo  Railroad  Co.  v. 

Railroad  Co.  v.  Ranck,  78  Penn.  St.  McCloskey,  23  Am.    &  Eng.   Railw. 

454;    Danville,   Hazleton,    &   AVilkes-  Cas.  86;    Duynies  i'.  Chicago  &  North- 

barre   Railroad   Co.  v.  Gearhart,  8H  western   Railway  Co.,   lb.   93.      The 

Penn.  St.  260.  fair  market  value,  i.  e.,  for  the  use 

The  value  to  be  put  upon  the  land  to  which  it  may  be  most  advanta- 
taken  is  the  fair  market  value.  Page  geously  applied,  and  for  which  it 
V.  Milwaukee  &  St.  Paul  Railway  Co.,  would  sell  for  the  highest  price  in  the 
70  111.  324;  Jack.sonvil]e  &  Southeast-  mai-ket.  King  t'.  Minneapolis  Union 
crn  Railway  Co.  r.  Walsh,  100  111.  253;  Railway  Co.,  17  Am.  &  Eng.  Railw. 
Russell  V.  St.  Paul,  Minneapolis,  &  Cas.  93;  Chicago  &  Evan.ston  Rail- 
Manitoba  Railway  Co.,  20  Am.  &  Eng.  road  Co.  v.  Jacobs,  110  111.  414. 
Railw.  Cas.  191;  Fremont,  Elkhorn,  Johnson  v.  Freeport  &  Mississippi 
[*2G2J 


§ '1] 


COMPENSAirON :    MODE   OF   ESTIMATING. 


273 


4.  But  the  tappraiscrs  arc  to  assess  all  the  damaij^es,  present  and 
prospective,  to  wiiich  the  party  will  ever  be  entitled,  by  the  j^ru- 
dcnt  construction  and  operation  ol'  the  ruad.'^ 

»  Dearborn  v.  Boston,  Concord,  &  Montreal  Railroad  Co.,  24  N.  II.  179; 
Clark  V.  Vermont  &  Canada  Railroad  Co.,  28  Vt.  10-"5.  The  expen.se  of  fencinpf 
18  to  be  included  in  the  estimate  of  land  damages.  Winona  &  St.  Peter  Rail- 
road Co.  V.  Denman,  10  Minn.  2G7.  The  matter  of  estimating  land  damaq-cs 
to  tlie  owner  of  a  farm,  a  portion  of  which  is  taken  for  the  construction  of  a 
railway,  is  discussed  with  a  considerate  regard  to  the  equitable  interests  of  all 
parties,  in  the  case  of  Robbins  v.  Milwaukee  &  Iloricon  Railroad  Co.  ,G  Wis. 
(J30.  Damages  done  to  mill  property  in  lesseiung  the  advantages  of  the  water- 
power,  present  and  prospective,  should  be  taken  into  account  in  estimating 
land  damages.  Dorian  v.  East  Brandy  wine  &  Waynesburg  Railroad  Co.,  4(5 
Penn.  St.  520. 


River  Railroad  Co.,  Ill  111.  413;  Low 
V.  Concord  Railroad  Co.,  25  Am.  & 
Eng.  Railw.  Cas.  199.  As  to  what 
i.s  market  value,  see  Sherman  v.  St. 
Paul,  ^Minneapolis,  &  Manitoba  Rail- 
way Co.,  30  Minn.  227;  Everett  v. 
Union  Pacific  Railroad  Co.,  59  Iowa, 
24"};  Paducah  &  IMemphis  Railroad 
Co.  t'.  Stovall,  12  Heisk.  1;  Boston, 
Hoosac  Tunnel,  &  Western  Railway 
Co.,  22  Ilun,  17G.  In  Brisbiiie  r. 
St.  Paul  &  Sioux  City  Railroad  Co., 
23  Minn.  114,  the  value  of  the  land 
as  an  exclusive  means  of  approach  to 
a  city  was  considered.  Depreciation 
in  the  value  of  the  residue  may  also 
be  consictered.  Cincinnati  &  Spring- 
field Railway  Co.  r.  Longworth,  30 
Ohio  St.  108;  Fremont,  Elkhorn,  & 
Missouri  Valley  Railroad  Co.  r. 
Whalen,  ciipni.  But  only  so  far  as  it 
follows  from  a  proper  construction  of 
tlu>  road.  Fremont,  Elkhorn,  &  Mis- 
souri Valley  Railroad  Co.  r.  Whalen, 
supra  ;  Burlington  &  Missouri  River 
RaihoadCo.  v.  Schluntz,  14  Neb.  421. 
So  far  as  it  results  from  an  antici- 
pated improper  construction  it  is  too 
speculative.  Fremont,  Elkhorn,  & 
Missouri  Valley  Railroad  Co.  v. 
Whalen,  supra.     Xor  can  any  account 

VOL.  I.  —  18 


be  taken  of  the  state  of  the  owner's 
business.  Pittsburg  &  Lake  Erie 
Railroad  Co.  v.  Robinson,  95  Penn. 
St.  420.  Or  of  benefits  arising  from 
improvements  in  the  market,  &c.  St. 
Louis,  Jersey ville,  &  Springfield  Rail- 
road Co.  V.  Kirby,  104  111.  345.  Or  of 
the  special  value  of  the  property  as 
prospectively  a  monopoly  of  a  roadway 
to  lands  of  other  persons.  Powers  v. 
Hazelton  &  Setonia  Railroad  Co.,  33 
Ohio  St.  429.  Nor,  without  a  cros.s- 
bill,  of  damage  to  contiguous  lands. 
Jones  V.  Chicago  &  Iowa  Railway  Co., 
G8  111.  380.  But  where  there  are  con- 
nected parcels,  the  damage  to  all  should 
be  estimated,  and  not  merely  tlie  dam- 
age to  the  parcels  touciied.  Wyan- 
dotte, Kansas  City,  &  Northwestern 
Railway  Co.  v.  Waldo,  70  Mo.  029. 

As  to  damages  where  parts  of  town 
lots  are  taken  or  a  part  of  land  hiid 
out  into  town  lots,  see  Hooper  v.  Sa- 
vannah &  Memphis  Railroad  Co.,  GO 
Ala.  529;  Watson  v.  Milwaukee  & 
Madison  Railway  Co..  57  Wis.  332; 
Cincinnati  &  Springfield  Railway  Co. 
V.  Longworth,  sfip^-n :  Todd  v.  Kan- 
kakee &  Illinois  Railroad  Co.,  78  111. 
530;  Hartsliorn  v.  Burlington,  Cedar 
Rapids,  &  Northern  liailwav  Co.,   52 


274 


EMINENT   DOMAIN. 


[part   III. 


*  5.  Some  of  the  state  constitutions  in  terms  provide  that  com- 
pensation for  private  property,  taken  for  public  use,  shall  be  made 
"  in  money,"  and  many  eminent  jurists  have  strenuously  main- 
tained that  compensation,  to  the  extent  of  the  value  of  the  land 
taken,  must  always  be  made  in  money,  (c?)  and  that  no  deduction 
can  be  made  on  account  of  any  advantage  which  is  likely  to 
accrue  to  other  property  of  the  owner,  by  reason  of  the  public 
work  for  which  the  property  is  taken.*     Such  accidental  advan- 

*  2  Kent  Com.  7th  ed.  394,  and  note;  Jacob  v.  Louisville,  9  Dana,  114; 
People  V.  Brooklyn,  6  Barb.  209.     But  this  last  case^was  subsequently  reversed 


Iowa,  613;  Everett  v.  Union  Pacific 
Railway  Co.,  59  Iowa,  243.  As  to 
taking  under  the  English  statute  of  a 
part  of  property  constituting  a  nianu- 
factoi-y,  see  Richards  v.  Swansea  Im- 
provement &  Tramways  Co.,  Law 
Rep.  9  Ch.  425.  See  also  Falkner  v. 
Somerset  &  Dorset  Railway  Co.,  Law 
Rep.  16  Eq.  458. 

As  to  damages  where  the  lands 
taken  are  farm  lands,  see  Michigan  Air 
Line  Railway  Co.  v.  Barnes,  44  Mich. 
222 ;  Mississippi  River  Bridge  Co.  v. 
Ring,  58  Mo.  491;  Harrison  v.  Iowa 
Midland  Railroad  Co.,  36  Iowa,  323; 
Union  Railroad  Transfer  &  Stockyard 
Co.  V.  Moore,  80  Ind.  458;  Brooks  v. 
Davenport  &  St.  Paul  Railroad  Co., 
37  Iowa,  99.  The  cost  of  fencing  is 
not  an  element,  but  how  much  the 
burden  of  fencing  will  depreciate 
value,  is  a  proper  question.  Pitts- 
burg, Bradford,  &  Buffalo  Railway 
Co.  V.  McCloskey,  23  Am.  &  Eng. 
Railw.  Cas.  86.  The  owner  of  farm- 
land has  a  reasonable  right  to  farm 
crossings.  Kansas  City  &  Emporia 
Railway  Co.  v.  Kregelo,  32  Kan.  008. 

AVhere  part  of  a  tract  is  taken,  the 
injury  to  the  whole  must  be  considered. 
Sheldon  v.  Minneapolis  &  St.  Louis 
Railway  Co.,  29  Minn.  318;  Reisner  v. 
Union  Depot  Co  ,  27  Kan.  382 ;  Bigelow 
V.  West  Wisconsin  Railway  Co.,  27 
"Wis.  478.  See  Chicago  &  Evanston 
[*263] 


Railway  Co  v.  Dresel,  110  111.  89.  As 
to  what  will  be  considered  an  entire 
tract  within  the  meaning  of  this  rule, 
see  Wilmes  v.  Minneapolis  &  North- 
western Railway  Co.,  29  Minn.  242; 
Hartshorn  v.  Burlington,  Cedar  Rapids, 
&  Northern  Railway  Co.,  52  Iowa,  613; 
Atchison  &  Nebraska  Railroad  Co.  v. 
Gough,  29  Kan!  94 ;  Kuthsburg  &  East- 
ern Railroad  Co.  v.  Henry,  79  111.  290; 
Kansas  City,  Emporia,  &  Southern 
Railway  Co.  v.  Merrill,  25  Kan.  421, 
Parks  V.  Wisconsin  Central  Railroad 
Co.,  33  Wis.  413;  St.  Paul  &  Sioux 
City  Railway  Co.  v.  Murphy,  19  Minn. 
500.  The  way  in  which  land  is  cut, 
whether  so  as  to  sever  it  and  to  result  in 
inconvenience  to  the  owner,  should  be 
considered.  Brooks  u.  Davenport  &  St. 
Paul  Railroad  Co.,  37  Iowa,  99 ;  Dreher 
V.  Iowa  Southwestern  Railway  Co., 
10  Am.  &  Eng.  Railw.  Cas.  221.  But 
further  as  to  inconvenience  from  fire, 
smoke,  fencing,  &c.,  see  infra,  §  74. 
The  value  of  a  building  destroyed  is  to 
be  considered,  and  its  value  is  its  value 
as  a  building,  not  for  the  materials 
of  which  it  is  composed.  Lafayette, 
Bloomington,  &  ]\Iississippi  Railroad 
Co.  V.  Winslow,  66  111.  219.  In  case  of 
injury,  general  depreciation  must  be 
distinguished.  Chicago  &  Eastern  Illi- 
nois Railroad  Co.  v.  Hall,  8  Brad.  621. 
(r/)  Chesapeake  &  Ohio  Railroad 
Co.  V.  Patton,  6  W.  Va.  147. 


§71.]  compensation:   mode  of  estimating.  275 

tagcs  to  the  |)ortion  of  land  not  takon  as  drainage  by  means  of 
cuts  in  the  soil  from  grading  the  railway  cannot  be  taken  into 
account.'^ 

G.  In  a  case  in  Vermont  the  court  held,  that  taking  land  for  a 
public  highway  is  not  appro] )riating  it  to  public  use,  within  the 
meaning  of  the  constitution  of  that  state,  which  requires  compen- 
sation in  such  cases  to  be  made  "  in  money,"  but  that  this  pro- 
vision only  applies,  where  the  fee  of  the  land  is  taken ;  and  that 
where  an  easement  only  is  taken  for  the  purpose  of  a  highway,  and 
the  remaining  land  is  worth  more  than  the  whole  was  before  the 
laying  out  of  the  road,  the  party  is  entitled  to  no  compensation.^ 

in  the  Court  of  Appeals.  *4  Comst.  419.  And  see  Rice  v.  Turnpike  Co.,  7  Dana, 
81 ;  Woodfolk  v.  Nashville  &  Chattanooga  Railroad  Co.,  2  Swan,  422.  In  the 
last-n.imed  case  it  was  said,  benefits  to  the  remaining  land  may  be  .set  off 
against  injury,  but  the  party  cannot  be  compelled  to  apply  such  benefits  towards 
the  price  of  his  land.  New  Orleans,  Opelousas,  &  Great  Western  Railway  Co. 
V.  Lagarde,  10  La.  An.  150.  Under  such  a  provision  in  the  constitution  of 
Ohio,  it  was  held,  that  in  assessing  damages,  the  jury  had  no  right  to  take  into 
cousideratiou  tlie  fact,  that  the  value  of  the  land  had  been  increased  by  the 
propo.sal  or  construction  of  the  work.  Giesy  v.  Cincinnati,  Wilmington,  & 
Zanesville  Railroad  Co.,  4  Ohio  St.  308.  General  benefits  resulting  from  the 
erection  of  a  railway,  to  all  who  own  property  in  the  vicinity,  are  not  to  be 
taken  into  the  account,  in  estimating  land  damages;  and  it  was  doubted  if 
special  benefits,  accruing  to  the  remainder  of  the  land,  could  be  so  taken  into 
account.  Little  Miami  Railroad  Co.  v.  Collett,  G  Ohio  St.  1S2;  Pacific  Rail- 
road Co.  V.  Chrystal,  25  Mo.  514. 

6  Evansville  &  Crawfordsville  Railroad  Co.  v.  Fitzpatrick,  10  Ind.  120,  5G0. 

•  Livermore  v.  Jamaica,  23  Vt.  301.  Tiiis  case  has  been  questioned.  1  .Shelf. 
Rixilw.  Bennett's  ed.  441.  And  the  opposite  view  maintained  in  Pumpelly 
V.  Green  Ray  Co.,  13  Wal.  166.  See  also  Reitenbaugh  v.  Chester  Valley  Rail- 
road Co.,  21  Penn.  St.  100.  Contra,  McMahon  v.  Cincinnati  &  Chicago  Short- 
Line  Railroad  Co.,  5  Ind.  413.  Benefits  arising  to  the  owner  of  the  land  *'  by 
the  construction  of  the  road"  held  not  to  have  reference  to  the  whule  work, 
but  to  that  particular  portion  which  runs  through  the  party's  land.  Milwau- 
kee &  Mississippi  Railroad  Co.  v.  Eble,  4  Chand.  72.  An  act  which  provides  for 
setting  off  the  advantages  to  other  laud  against  the  value  of  the  land  taken,  is 
not,  on  that  account,  unconstitutional.  McMasters  v.  Commonwealth,  3  Watts, 
292.  But  it  has  often  been  held,  that  such  accidental  advantages,  especially 
where  they  are  not  peculiar  to  tlie  particular  land-owner,  cannot  be  set  off  against 
the  specific  value  of  the  land  takon.  State  v.  Miller,  3  Zab.  383;  Woodfolk  v. 
Nashville  &  Chattanooga  Railroad  Co.,  2  Swan,  422;  Hill  v.  Mohawk  &  Hudson 
Railroad  Co.,  5  Denio,  200;  Keasy  v.  Louisville,  4  Dana,  154;  Sutton  v.  Louis- 
ville, 5  Dana,  28;  People  v.  Brooklyn,  6  Barb.  209.  But  many  cases  hold  the 
coutrarv.     People  v.  Brooklyn,  4  Comst.  419,  where  s.  c.  6  Barb.  209.  is  re- 


276  EMINENT   DOMAIN.  [PART   III. 

*  7.  This  is  certainly  not  in  conformity  with  the  general  course 
of  decision  upon  this  subject.  It  is  tlie  only  case  probably,  where 
an  attempt  is  made  to  escape  from  such  a  constitutional  provision, 
in  this  manner.  Some  will  doubtless  regard  it  as  too  refined  to 
be  sound.  And  if  it  is  true,  as  is  sometimes  claimed,  that  tlie 
legislature  had  no  right  to  resume  the  fee  of  land  for  highways 
and  railways,  such  a  constitutional  provision,  with  such  a  con- 
struction, would  have  little  application  to  the  taking  of  land  for 
such  uses." 

versed;  Rexford  v.  Knight,  15  Barb.  627.  But  where  profits  are  to  be  taken 
into  the  account,  the  title  to  have  them  considered  obtains  at  the  time  the  ser- 
vitude is  located.  Palmer  Co.  v.  Ferrill,  17  Pick.  58.  Benefits  by  increase 
of  business  and  population,  markets,  schools,  stores,  and  other  like  improve- 
ments, cannot  be  considered,  in  estimating  damages,  for  flowing  laud  by  a 
mill-dam.     lb. 

In  a  case  in  New  Hampshire,  In  re  Mount  Washington  Road  Co.,  35  N.  H. 
131,  it  was  decided,  that  in  assessing  damages  for  land  taken  for  a  turnpike 
or  free  highway,  compensation  is  to  be  given  for  the  actual  value  of  the  land 
taken,  without  regard  to  any  speculative  advantages  or  disadvantages  to  the 
owner.  See  Cushmau  v.  Smith,  31  Me,  247.  But  in  Indiana  Central  Rail- 
road Co.  V.  Hunter,  8  Ind.  74:,  the  rule  of  Livermore  v.  Jamaica,  supra,  is 
adopted.  And  in  Whitman  v.  Boston  &  Maine  Railroad  Co.,  7  Allen,  313,  it 
was  decided,  that  in  estimating  the  damages  to  land  by  reason  of  the  location 
of  a  railway  across  it,  and  the  filling  up  of  a  canal  in  which  the  owner  of  the 
lot  had  a  privilege,  if  the  value  of  the  lot  was  so  enlianced  that  what  re- 
mained was  worth  moi'e  than  the  whole  lot  was  before,  the  owner  had  no 
claim  for  damages,  s.  p.  in  s.  c,  3  Allen,  133.  But  the  benefits  to  be  de- 
ducted from  the  value  of  land  taken  must  accrue  to  the  remaining  land,  and 
not  to  all  land  in  the  same  vicinity.  Winona  &  St.  Peter  Railroad  Co.  v, 
Waldron,  11  Minn.  515. 

^  Hatch  V.  Vermont  Central  Railroad  Co.,  25  Vt.  40;  s.  C.  1  Redf.  Am. 
Railw.  Cas.  285;  Reitenbaugh  v.  Chester  Valley  Railroad  Co.,  21  Penn.  St. 
100.  Contra,  Little  Aliami  Railroad  Co.  v.  Naylor,  2  Ohio  St.  235.  And  in 
a  case  in  Mississippi,  Brown  v.  Beatty,  34  Miss.  227,  where  the  constitution 
required  "compensation  first  to  be  made"  for  land  taken,  it  was  held  the 
provision  secured  to  the  owner  the  right  to  receive  the  cash  value  in  money, 
and,  in  addition,  full  indemnity  for  all  damages  by  means  of  severance,  and 
that  no  enhanced  value  of  the  portion  of  land  not  taken  could  be  taken  into 
the  account.  See  also  Branson  v.  Philadelphia,  47  Penn.  St.  320;  Henry  v. 
Dubuque  &  Pacific  Railroad  Co.,  10  Iowa,  510.  It  is  said  in  one  case,  what  is 
very  nearly  a  truism,  that  corporate  existence  and  the  right  of  eminent  domain 
can  be  derived  only  from  legislative  grant,  and  that  both  mu.st  be  shown,  and 
also  compliance  with  all  conditions  of  the  grant,  to  justify  taking  lands  com- 
pulsorily.  Atkinson  v.  Marietta  &  Cincinnati  Railroad  Co.,  15  Ohio  St.  21. 
J^fra,  §  76.  The  dedication  of  land  to  the  use  of  a  street  will  not  autliorize  the 
[*264] 


§  71.]  compensation:   mode  of  estimating.  277 

*  8.  The  English  statute  provides,  that,  in  estimating  comfjen- 
sation  for  hind  damages  "  regard  shall  be  had,  not  only  to  the 
laud  taken,  but  also  to  damage  by  reason  of  severance  from  other 
hiuds  or  otherwise  injuriously  affecting  such  lands."  There  arc, 
too,  in  the  English  statute,  provisions  for  compensation  to  sundry 
siil»ordinato  interests  in  lands,  as  to  lessees  for  years  and  to 
tenants  from  year  to  year.  And  also  in  regard  to  mines.  The 
company  are  not  entitled  to  mines  or  minerals  under  lands,  ex- 
cept such  parts  as  shall  be  necessary  to  use  in  the  construction  of 
the  road,  unless  expressly  purchased.  It  has  been  held  that 
stone  got  from  quarries  are  minerals,^  and  that  mines  are  quar- 
ries, or  places  where  anything  is  dug,^  By  the  English  statute, 
the  company  may  remove  or  displace  gas  or  water  pipes,  making 
compensation  to  all  parties  injured. 

9.  And  where  commissioners  appraise  the  damages  upon  the 
basis  of  the  railway  making  and  maintaining  certain  works  for 
the  accommodation  of  the  land-owner,  as  a  culvert  and  waste- 
way,  <fcc.,  it  was  held  this  portion  of  the  award  was  not  void ;  but 
if  acquiesced  in  by  the  com[)any,  and  the  land  taken,  and  compen- 
sation made  *  upon  that  basis,  they  thereby  became  bound  l)y  its 
jtrovisions.io  But  where  it  was  referred  to  arbitration  to  estimate 
the  damages  caused  to  the  plaintiff,  and  the  company  by  the  ex- 
jiress  terms  of  its  charter  was  bound  to  make  suitable  crossings 
for  the  accommodation  of  land-owners  through  whose  land  the 
right  of  way  was  taken,  and  the  land-owner  told  the  agents  of  the 

lefifislature  to  appropriate  it  to  the  use  of  a  railway  track  without  compensa- 
tion to  the  ownor,  and,  if  this  is  attempted,  it  may  be  restrained  by  injunc- 
tion.    Schurmcier  t;.  St.  Paul  &  Pacific  Railroad  Co.,  10  Minn.  82. 

'  IVIickletliwait  v.  Winter,  G  Exch.  G14;  s.  c.  5  Eng.  L.  &  Eq.  526. 

•  Ilodgea  Railw.  2^58,  note  (y).  The  more  common  mode  of  estimating 
land  damages  unquestionably  is,  to  give  the  company  the  specific  benefit 
to  land,  a  portion  of  which  is  taken,  in  enhancing  its  value,  and  only  to  allow 
the  land-owner  such  a  sum  as  will  leave  him  as  well  off  in  regard  to  the  par- 
ticular land  as  if  the  works  had  not  been  built,  or  his  land  taken.  This  is 
done  by  giving  the  land-owner  a  sum  equal  to  the  difference  between  what 
the  whole  land  would  have  sold  for  before  the  road  was  built,  and  what  the 
remainder  will  sell  for  after  the  construction.  Flarvey  r.  Lackawanna  & 
Bloorasburg  Railroad  Co.,  47  Penn.  St.  428.  But  this  rule  will,  in  many 
cases,  prove  entirely  inadequate  and  unsatisfactory,  and  where  it  has  been 
adopted  it  may  be  regarded  as  only  extending  to  other  oas(\«!  of  a  very  similar 
character.     Winona  &  St.  Peter  Railroad  Co.  v.  Denman,  10  Minn.  2G7. 

"  ]\Iorse,  Petitioner,  18  Pick,  443. 

[*-2G5,  *2G6] 


278  EMINENT   DOMAIN.  [PART   III. 

company,  at  the  hearing  before  the  arbitrators,  that  he  should 
require  a  crossing  to  be  provided  for  his  convenience ;  and  the 
agents  claimed  that  the  arbitrators  had  nothing  to  do  with  this 
matter,  and  that  claim  was  acquiesced  in  by  the  arbitrators  and 
the  parties,  and  the  award  only  embraced  the  damage  to  the  land, 
and  subsequently  the  land-owner  was  induced  to  convey  to  the 
company  the  right  of  way,  without  annexing  a  condition  binding 
the  company  to  maintain  a  crossing  for  his  accommodation ;  upon 
the  assurance  of  the  counsel  of  the  company  that  such  deed  would 
not  affect  his  right  to  claim  a  crossing,  it  was  held,  upon  a  bill  to 
reform  the  deed  and  to  establish  his  right  to  the  crossing,  that  he 
was  entitled  to  the  relief  sought,  and  an  injunction  was  granted 
accordingly.il  But  where  a  private  way  crossed  the  line  of  rail- 
way obliquely,  and  the  award  of  land  damages  only  indicated  the 
point  at  which  the  company  were  to  supply  a  crossing,  it  was 
held  a  sufficient  compliance  with  the  obligation  of  the  company 
to  give  a  crossing  at  right  angles,  although  this  did  not  connect 
with  the  termini  of  the  road  or  afford  any  access  to  it.^^ 

10.  In  some  of  the  states  in  this  country,  the  advantages  and 
disadvantages  of  taking  land  for  a  railway  are  required  to  be 
stated  in  the  report  of  appraisal,  and  the  omission  to  make  such 
specific  statement  was  held  a  fatal  omission.i^  (t?)     So,  too,  where 

11  Green  v.  Morris  &  Essex  Railroad  Co.,  1  Beasley,  165. 

12  Mann  v.  Great  Southern  &  Western  Railway  Co.,  9  Ir.  Com.  Law, 
10.5. 

13  Ohio  &  Pennsylvania  Railroad  Co.  U.Wallace,  14  Penn.  St.  2-15;  Reiten- 
baugh  V.  Chester  Valley  Railroad  Co.,  21  Penn.  St.  100 ;  Railroad  Co.  v.  Gilsoii, 
8  Watts,  243;  Zack  v.  Pennsylvania  Railroad  Co.,  25  Penn.  St.  304.  But  it 
has  been  held,  in  some  cases,  where  the  advantages  resulting  to  the  land- 
owner were  to  be  taken  into  the  accomit,  that  in  an  award  the  value  of  the 
land  need  not  be  stated  separately  from  the  damage,  but  only  the  amount  of 
the  whole  injury.  At  all  events,  such  amendments  w^ill  be  allowed,  as  to  cure 
such  defects.  Greenville  &  Columbia  Railroad  Co.  v.  Nunnamaker,  4  Rich. 
107.  Questions  have  sometimes  been  made,  in  regard  to  which  party,  in  pro- 
ceedings of  this  character,  is  entitled  to  go  forward  in  the  proofs  and  argu- 
ment. Upon  principle,  and  in  analogy  to  similar  proceedings,  we  think  there 
can  be  little  doubt  that  this  right  is  with  the  land-owner,  in  proceedings  be- 
fore the  jury  or  where  he  is  to  all  intents  actor.  But  after  having  obtained  an 
award,  it  has  been  more  usual,  in  practice,  to  allow  the  excepting  party  to  go 

(i?)  In  McReynolds  v.  Baltimore  &  held  that  the  company  has  the  right 
Ohio  Railroad  Co.,  lOG  111.  152,  it  is     to  open  and  close. 

[*266] 


§71.]  COMPENSATION:    MODE   OF    ESTIMATING.  279 

•additional  expense  of  fencing  is  allowed  in  improved  land,  the 
I'Cjtoit  must  specify  that  fact.^* 

11.  But  in  general  there  is  no  discrimination  made  in  tlie  re- 
port estimating  damages  for  taking  land  for  ])ul)lic  works,  be- 
tween the  vahic  of  the  land  ajjpropriated  and  the  incidental  injury 
from  severance  and  otherwise  ;  and,  unless  specially  required  hy 
the  charter  of  tlie  company  or  some  other  legislative  act,  such 
discrimination  does  not  seem  indisj)ensablc  to  the  validity  of  the 
report ;  but  would  unquestionably,  in  the  majority  of  cases,  tend 
to  render  the  report  more  satisfactory.^^ 

*  12.  In  contracts  between  railway  companies  and  land-owners, 
in  regard  to  farm  accommodations,  if  the  company  desire  to  retain 

forward.  1  Greenl.  Ev.  §§  7G,  77;  Connecticut  River  Raih'oad  Co.  v.  Clapp, 
1  Cusli.  559;  s.  c.  1  Am.  Kailw.  Cas.  450;  Mercer  v.  Whall,  5  Q.  B.  447.  But 
see  Albany  Northern  Railroad  Co.  v.  Lansing,  16  Barb.  08,  where  the  court  say, 
"Tlie  coinmis.sioners  have  the  right  and  power  to  exercise  their  own  discre- 
tion in  reference  to  the  order  that  they  take  in  appraising  the  land.  They 
may  view  the  land  first  and  hear  the  proofs  and  allegations  afterwards,  or  vice 
versa.  So  whether  one  party  or  the  other  should  first  be  heard,  is  for  them  to 
determine.  Having  decided  that  the  railway  corporation  might  open  and 
close  the  hearing,  the  defendant  was  concluded  by  their  decision,  as  also  would 
their  decision  have  been  conclusive  on  the  company  had  the  same  privilege 
been  awarded  to  the  owner  of  the  land."  But  where  the  error  in  the  exercise 
of  this  discretion  does  manifest  wrong,  at  nisi  prius,  the  verdict  will  be  set 
aside  for  this  reason  alone.     1  Greenl.  Ev.  104,  §  76,  and  note. 

Awards  of  land  damages  have  been  set  aside  for  excessive  damages.  Som- 
erville  &  Easton  Railroad  Co.  v.  Doughty,  2  Zab.  495.  But  this  subject  was 
somewhat  considered  in  Troy  &  Boston  Railroad  Co.  v.  Lee,  13  Barb.  109; 
Loe  V.  Northern  Turnpike  Co.,  16  Barb.  lUO;  and  it  was  held  that  the 
award  should  not  be  set  aside,  unless  it  appeared  that  the  commissioners  erred 
in  the  principles  by  which  their  judgment  should  be  guided,  or  were  clearly 
mistaken  in  the  application  of  correct  principles.  This  is  putting  such  awards 
nuich  on  the  ground  of  other  awards.  And  in  Walker  v.  Boston  &  Maine 
Railroad  Co.,  3  Cush.  1,  it  was  held,  that  the  Common  Pleas,  to  which  the 
verdict  of  a  sheriff's  jury  is  to  be  returned,  and  which  may  set  the  same  aside, 
for  any  good  cause,  was  justified  in  doing  so,  for  irregularity  in  impanelling 
the  jury,  or  in  the  conduct  of  the  jury,  or  in  the  instructions  given  the  jury  - 
by  the  slieriff;  or  for  facts  affecting  the  purity,  honesty,  or  impartiality  of 
the  verdict,  such  as  tampering  with  the  jury  or  other  misconduct  of  the  party; 
or  any  irregularity  or  misconduct  of  the  jurors.  But  in  a  court  of  error  the 
verdict  can  only  be  set  aside  for  error  appearing  of  record.  But  see  infra,  §  72; 
Nicholson  v.  New  York  &  New  Haven  Railroad  Co.,  '22  Conn.  74. 

"  New  Jersey  Railroad  Co.  v.  Suydam,  2  Ilarr.  25. 

"  Trenton  Water  Rower  Co.  v.  Chambers,  2  Beas.  199. 

[*2G7,  *2C8] 


280  EMINENT    DOMAIN.  [PART   III. 

any  special  distinction  conferred  by  statute,  they  must  incorpo- 
rate the  statute,  either  in  terms  or  by  reference,  into  the  contract. 
Otherwise  the  company  will  be  held  strictly  to  the  terms  of  the 
contract  as  applied  to  the  subject-matter.^'' 

13.  Where  there  is  any  controversy  in  regard  to  the  mode  of 
crossing  highways  and  turnpikes  by  railway  companies,  the  court 
will  refer  the  matter  to  men  of  experience  and  skill  in  such 
qucstions.^'^ 

14.  A  permission  in  a  railway  charter  to  cross  a  street  or  high- 
way by  a  level  crossing,  by  making  a  bridge  over  the  street  for 
the  accommodation  of  foot  passengers,  is  not  peremptory  upon 
the  company.  They  may  still  be  permitted  to  cross  the  street 
otherwise  than  on  a  level,  on  their  undertaking  to  abide  by  any 
order  the  court  might  make  as  to  damages.^^ 

15.  Where  land  is  sold  to  a  railway  company  upon  condition  of 
furnishing  such  farm  accommodations  as  the  land-owner  should 
notify  to  the  company  within  one  month,  time  is  regarded  as  of 
the  essence  of  the  condition,  and  if  notice  is  not  given  within  the 
time  limited  the  court  will  not  order  the  company  to  make  such 
accommodations  as  are  demanded,  nor  even  such  as  are  proper.^^ 

16  Clarke  v.  Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.,  1  Johns.  & 
H.  631. 

"  Attorney-General  v.  Dorset  Railway  Co.,  3  Law  T.  n.  s.  608. 

18  Dover  Harbor  v.  London,  Chatham,  &  Dover  Railway  Co.,  7  Jnr.  n.  s. 
453. 

19  Darnley  v.  London,  Chatham,  &  Dover  Railway  Co.,  3  De  G.  J.  &  S. 
24;  s.  c.  11  Jur.  n.  s.  520;  s.  c.  9  Jur.  n.  s.  148,  where  the  Vice-Chancellor 
decided  otherwise. 

[*268J 


§72.] 


MODE  OF  PROCEDURE. 


281 


♦SECTION   X. 


Mode  of  Procedure. 


1.  In  general  legislature  may  prescribe 

the  mode. 

2.  Proceedings   must    be   upon    proper 

notice. 

3.  Formal   exceptions    waived    by    ap- 

pearance. 

4.  Unless  tiicy  are  made  to  appear  of 

record. 
6.  Proper  parties,  those  in  interest. 

6.  Title  of  the  claimant  may  be  examined. 

7.  Parties    who  join   must   show    joint 

interest. 

8.  Jury  may  find  facts  and  refer  title  to 

tlie  court. 

9.  Land  must  be  described  in  verdict. 
n.  (g)  Jury,  in  some  states  may  view 

the  premises. 

10.  Distinct  finding  on  each  item  of  claim. 

11.  Different  interests.     Presumption  as 

to  finding. 


12,  13.  Evidence    admissible    to    prove 
value. 

14.  Opinion  of  witnesses.     Admissibility. 

15.  Testimony  of  experts.    Admissibility. 
10.  Matters  incapable  of  description. 

17.  Costs.     Allowance,  in  general. 

18.  Costs  and  expenses.     Meaning  of  the 

term. 

19.  Commissioners'  fees.     Party  liable. 

20.  Appellant  failing  must  pay  costs. 

21.  Competency  of  jurors. 

22.  Power  of  court  to  revise  proceedings. 

23.  Debt  will  not  lie  on  conditional  report. 
2-4.  E.xcessive  damages  ground  for  setting 

aside  verdict. 
n.  (m)  Matters  of  jurisdiction,  plead- 
ing, practice,  judgment,  appeal,  &c. 

25.  No  effort  to  agree  required  in  order 
to  give  jurisdiction. 

20.  Interest  on  value  from  time  of  taking. 


§  1%  1.  It  seems  to  be  universally  admitted,  that  -where  the 
organic  law  of  the  state  does  not  prescribe  tlie  mode  of  procedure, 
in  estimating;  land  damaires,  for  the  use  of  a  railway  company 
or  other  ]»iiblic  work,  it  is  comjietent  for  the  legislature  to  pre- 
scribe the  mode,  and  that  the  mode,  so  prescribed,  must  be  strictly 
followed.!  (^) 

2.  Thus,  it  has  been  held,  that  notice  in  writing  to  the  owner  of 
the  land  to  be  taken,  its  situation  and  quantity,  must  be  given/'^  (/') 

^  Bonaparte  v.  Camden  &  Amboy  Railroad  Co.,  Bald.  205;  Bloodgood  v. 
Mohawk  &  Hudson  Kailroad  Co.,  11  Wend.  51;  ,s.  c.  18  Wend.  9;  s.  c. 
1  Redf.  Am.  Railw.  Ca.s.  209. 

^  Vail  V.  ^lorris  &  Essex  Railroad  Co.,  1  Zab 
appoint  conimis.sioners  need  not  describe  the  land. 
Easton  Railroad  Co.,  1  Zab.  442. 


189.     But  the  notice  to 
Doughty  V.  Somerville  & 


(a)  Seoombe  v.  Milwaukee  &  St. 
Paul  Railway  Co.,  49  How.  Pr.  75; 
Secombe  v.  Milwaukee  &  St.  Paul 
Railway  Co.,  23  Wall.  108. 

{h)  Junction  City  &  Fort  Kearney 
Railway  Co.  v.  Silver,  27  Kan.  741. 


Chicago  &  Alton  Railroad  Co.  v. 
Smith,  78  111.  9G;  Cairo  &  Fulton  Rail- 
road Co.  V.  Trout,  32  Ark.  17 ;  Balti- 
more &  Ohio  Railroad  Co.,  r.  Pittsburg, 
Wheeling,  &  Kentucky  Railroad  Co., 
17  W.  Va.  812.  See  also  Burns  v. 
[*2G9] 


282  EMINENT   DOMAIN.  [PART   III. 

But  the  form  of  the  notice,  or  whether  signed  by  the  company 
or  by  tlic  commissioners,  is  not  important.'^  And  it  is  requisite, 
not  only  that  proper  notice  should  be  given,  but  that  it  should  ap- 
pear upon  the  face  of  the  proceedings  that  the  particular  notice 
required  by  the  statute  was  given.*  But  in  general,  we  apprehend, 
if  it  appears  upon  the  proceedings  that  notice  was  given  to  the 
laiid-owner,  it  might,  upon  general  principles,  be  presumed  it  was 
the  notice  required. 

*  3.  But  merely  formal  exceptions  to  the  mode  of  procedure 
and  the  competency  of  the  triers,  in  such  cases,  must  be  taken  at 
the  earliest  opportunity,  where  there  is  an  appearance,  or  they 
will  be  regarded  as  waived.^ 

4.  And  after  appeal,  it  should  appear  by  the  record  that 
merely  formal  exceptions  were  made  in  the  proceedings  below, 
and  overruled,  or  they  cannot  be  revised.^     So,  too,  where  the 

3  Ross  V.  Elizabethtown  &  Somerville  Railroad  Co.,  Spencer,  230. 

*  Van  Wickle  v.  Camden  &  Amboy  Railroad  Co.,  2  Green,  162.  See  also 
Bennet  v.  Camden  &  Amboy  Railroad  Co.,  2  Green,  145. 

5  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  58;  s.  c. 
1  Am.  Railw.  Cas.  508;  Walker  v.  Boston  &  Maine  Railroad  Co.,  3  Cash.  1; 
Pittsfield  &  North  Adams  Railroad  Co.  v.  Foster,  1  Cush.  480;  Field  v.  Vermont 
&  Massachusetts  Railroad  Co.,  4  Cush.  150;  Taylor  v.  County  Commissioners, 
13  Met.  449;  Porter  v.  County  Commissioners,  13  Met.  479;  Meachara  v. 
Fitchburg  Railroad  Co.,  4  Cush.  291;  s.  c.  1  Redf.  Am.  Railw.  Cas.  276; 
Davis  V.  Charles  River  Branch  Railroad  Co.,  11  Cush.  50G. 

Multnomah  Railway  Co.,  8  Sawyer,  543,  Plun,  G02.  Either  the  land-owner  or 
where  it  is  said  that  this  necessarily  the  company  may  apply  for  an  assess- 
follows  from  the  constitutional  inhibi-  ment  of  damages.  Cairo  &  Fulton 
tion  of  the  taking  of  private  property  Railroad  Co.  v.  Trout,  32  Ark.  17. 
for  public  use  without  compen.sation.  In  Wisconsin,  by  statute,  the  initiative 
An  accurate  description  of  the  land  is  with  the  company.  Sherman  v. 
is  essential  to  jurisdiction.  In  re  "Revf  Milwaukee,  Lake  Shore,  &  Western 
York  Central  &  Hudson  River  Railroad  Railroad  Co.,  40  Wis.  645.  Notice 
Co.,  90  N.  y.  342.  So,  if  notice  be  sent  as  to  a  deceased  holder  of  a  life  e.s- 
by  mail,  that  it  be  sent  to  the  proper  tate,  without  notice  to  the  remainder- 
address.  Morgan  v.  Chicago  &  North-  man,  will  not  be  good  as  against  the 
eastern  Railroad  Co.,  36  Mich.  428.  latter.  Cairo  &  Alton  Railroad  Co. 
If  proper  notice  be  not  given  so  that  v.  Smith,  78  111.  96.  A  mortgagee  is 
the  land-owner  has  not  been  heard,  the  entitled  to  notice.  Piatt  v.  Bright, 
court  may  refuse  to  confirm  the  report  29  N.  J.  Eq.  128.  Want  of  notice 
of  the  commissioners,  and  direct  a  is  waived  by  appearance.  East  Sag- 
rehearing.  In  re  New  York,  Lacka-  inaw  &  St.  Clair  Railroad  Co.  v.  Ben- 
wanna,   &  Western  Railway   Co.,  29  ham,  28  Mich.  459. 

[*270J 


§  72.]  MODE   OF    PROCEDURE.  283 

party  excepting  to  proceedings  Ix'fore  commissioners,  applies  for 
a  jury  to  revise  the  assessment  of  damages,  it  will  be  regarded  as 
a  waiver  of  the  exceptions.*'  Ug  should  have  applied  for  a  cer- 
tiorari, if  he  intended  to  revise  the  case  upon  his  excepticjns.^ 

a.  In  regard  t(j  the  proper  parties  to  such  proceedings,  almost 
infinite  variety  of  questions  will  arise.  The  only  general  rule 
which  can  be  laid  down,  perhaps,  is,  that  those  having  an  in- 
terest in  the  question  may  become  parties  plaintiif,  or  be  made 
parties  defendant,  according  to  the  character  and  quality  of  the 
interest.^  (d) 

0.  In  the  English  courts,  it  has  been  held,  that  these  summary 
tribunals  for  estimating  land  damages  are  not  to  inquire  into  the 

•  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Raih-oad  Co.,  3  Cush.  58; 
Ashby  V.  Eastern  Railroad  Co.,  5  Met.  308:  Greenwood  v.  Wilton  Railroad 
Co.,  3  Fost.  N.  H.  201 ;  Parker  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  107; 
Alasou  V.  Kennebec  &  Portland  Railroad  Co.,  31  Me.  215;  Atlantic  &  St. 
Lawrence  Railroad  Co.  v.  Cumberland  County  Commissioners,  51  Me.  36. 
And  it  seems  to  be  regarded  as  indispensable  that  parties  under  disability 
should  be  properly  represented  in  the  proceedings,  the  same  as  in  other  suits. 
Ilotchkiss  V.  Auburn  &  Rochester  Railroad  Co.,  30  Barb.  600.  But  where  a 
dt-maiid  and  tender  of  the  value  of  land  taken,  together  with  other  legal 
damages,  are  required  before  instituting  compulsory  proceedings,  the  require- 
ment cannot  apply  to  the  case  of  an  infant,  who.se  rights  will  be  saved  till 
of  full  age.  Indiana  Central  Railroad  Co.  v.  Oakes,  20  Ind.  9.  Judgment 
creditors  are  not  necessary  parties.  Watson  v.  Xew  York  Central  Railroad 
Co.,  47  N.  Y.  157. 

('/)  IVoria  ^c  Rock  Island  Railway  s.  c.  07  X.  Y.  227;  Dietrichs  v.  Lincoln 
Co.  r.  Rice,  75  111.  329.  Suit  revived  &  Northwestern  Railroad  Co.,  13  Neb. 
in  name  of  heirs.  Valley  Railway  Co.  36.  Corporations  that  are  but  nominal 
r,  Bohm,  29  Ohio  St.  633.  As  to  corpo-  parties,  their  franchises  being  used  for 
rations,  by  and  in  whose  name  and  the  benefit  of  other  corporations,  see 
for  whose  benefit  proceedings  may  Aurora  &  Cincinnati  Railroad  Co.  r. 
be  taken:  —  Foreign  corporations,  see  ^filler,  50  Ind.  88;  Lower  v.  Chicago, 
Ilolbert  I'.  St.  Louis,  Kansas  City,  &  Burlington,  &  Quincy  Railroad  Co., 
Northern  Railsvay  Co.,  45  Iowa,  23.  59  Iowa,  503;  Swinney  r.  Fort  Wayne, 
Corporations  </e  yhc/o,  see  McAuley  I'.  Muncie,  &  Cincinnati  Railroad  Co., 
Columbus,  Chicago,  &  Indiana  Central  59  Ind.  205;  Coe  v.  New  Jersey  Mid- 
Railway  Co.,  83  111.  348;  Reisner  v.  land  Railway  Co.,  31  N.  J.  Eq.  105. 
Strong,  24  Kan.  410.  Consolidated  A  lessee  for  nine  hundred  and 
corporations,  see  Toledo,  Ann  Arbor,  &  ninety-nine  years  is  not  a  necessary 
Grand  Trunk  Railway  Co.  r.  Dunlap,  party.  Englewood  Connecting  Rail- 
47  Mich.  450.  Coriwrations  that  have  road  Co.  r.  Chicago  &  Eastern  Illinois 
leased  their  line.s,  see  Kip  i;.  New  York  Railroad  Co.,  25  Am.  &  Eng.  Railw. 
&  Harlem  Railroad  Co.,  6  Ilun,  24;  Cas.  227. 

[*270] 


284  EMINENT   DOMAIN.  [PART   III. 

title  of  the  claimants."  But  in  some  cases  in  this  country,  it  has 
been  held,  that  the  claimant's  title  to  the  land  is  a  proper  subject 
of  inquiry  before  the  jury,  in  estimating  damages.^  (e)  And  where 
the  commissioners  refuse  to  allow  the  petitioner  damages  on  *  ac- 
count of  his  not  being  the  owner  of  the  land,  this  is  such  a  final 
decision  as  may  be  revised  by  a  jury,  and  the  Supreme  Court  will 
allow  a  mandamus,  if  that  is  denied.^ 

7.  Parties  who  join  must  show  a  joint  interest  in  the  land,  but 
this  need  not  always  be  shown  by  deed.  Oral  evidence  is  some- 
times admissible,  where  one  owns  the  fee,  and  others  have  a  joint 
interest,  in  consequence  of  erections,  and  the  jury  may  properly 
pass  upon  the  title  as  matter  of  fact.^^ 

8.  But  the  jury  are  not  bound  to  decide  upon  conflicting  titles, 
but  may  report  the  facts  without  determining  the  owner.^^  And 
it  has  been  held  that  the  jury  are  not  bound  to  find  a  special 
verdict,  in  regard  to  the  title  of  the  claimant,  or  where  there  are 
conflicting  claims,  but  may  do  so  with  propriety.^-  (/) 

■?  Infra,  §  98. 

8  Directors  of  Poor  v.  Railroad  Co.,  7  Watts  &  S.  23G.  Allyn  v.  Providence, 
AVarren,  &  Bristol  Railroad  Co.,  4  R.  I.  457. 

9  Carpenter  v.  Bristol  County  Commissioners,  21  Pick.  258.  The  trustee, 
and  not  the  cestui  que  trust,  is  the  proper  party  to  such  proceeding.  Davis  r. 
Charles  River  Branch  Railroad  Co.,  11  Cush.  506.  The  title  of  the  petitioner 
may  be  inquired  into,  either  on  the  return  of  the  petition  or  of  the  report. 
Church  V.  Northern  Central  Railroad  Co  ,  45  Penn.  St.  339.  The  mode  of 
proceeding  on  certiorari,  and  in  other  writs,  is  here  discussed. 

10  Ashby  V.  Eastern  Railroad  Co.,  5  Met.  368.  So  also  where  the  land 
belonged  to  a  partnership,  and  was  not  needed  for  the  payment  of  partnership 
debts,  one  of  the  partners  having  died,  it  was  held  that  the  title  remained  in 
the  partners  as  tenants  in  common,  and  that  proceedings  to  recover  damages 
by  reason  of  laying  a  railway  upon  it,  were  properly  taken  in  their  joint 
names.     Whitman  v.  Boston  &  Maine  Railroad  Co.,  3  Allen,  133. 

11  In  re  Anthony  Street,  19  Wend.  678.  So,  too,  where  one  owns  the  fee, 
and  another  has  a  bond  for  a  deed,  the  condition  of  which  is  not  yet  performed, 
they  may  join.  Locks  &  Canals  Proprietors  v.  Nashua  &  Lowell  Railroad 
Co.,  10  Cush.  385. 

12  Davidson  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  91;  1  Am.  Railw. 
Cas.  534.  The  sheriif  is  bound  to  give  the  jury  definite  instructions  in  regard 
to  the  effect  of  a  conveyance.     lb. 

(e)   See  Trogden  v.  Winona  &  St.  company  to  erect,  or  the  land-owner 

Peter  Railroad  Co.,  22  Minn.  198.  to  accept,  a  wagon  bridge  as  part  of 

(/)  The  jury  have  no  power,  with-  the  damages.     The  damages  are  to  be 

out  consent  of  p.irties,  to  bind  the  computed  on  a  money  basis.  Toledo 
[*271] 


§  72.]  MODE   OF    PROCEDURE.  286 

9.  The  jury  should  describe  the  land  with  intellij^ible  boun- 
daries.^-'^ (fj) 

*  10.  Where  the  claim  for  damages  consists  of  several  items, 
it  is  more  conducive  to  a  final  disj)osition  of  the  case  to  state  the 
finding  upon  each  item.  In  such  case  any  objectionable  item  may 
be  remitted  or  deducted  without  the  necessity  of  a  rehearing.^* 

11.  J  Jut  where  the  petition  alleges  several  .distinct  causes  of 
damage,  and  a  general  verdict  is  rendered,  if  one  or  more  of  the 
causes  is  insullicient,  it  will  not  be  presumed  the  jury  gave  any 
damages,  on  such  insufficient  claims,  in  the  absence  of  any  in- 
structions by  the  sheriff  in  relation  to  them.^^  But  it  is  not 
necessary  to  apportion  the  damages  to  several  joint-owners,  and 
a  tenant  for  life  may  take  proceedings  to  obtain  damages  done  to 
his  estate  by  the  construction  of  a  railway,  without  joining  the 
remainderman.^*' 

"  Vail  V.  Morris  &  Essex  Railroad  Co.,  1  Zab.  189.  But  see  Thiladelphia 
Uailroad  Co.  v.  Trimble,  4  Whart.  47.  The  jury  are  not  to  include  in  their  esti- 
mate the  "Expense  of  farm  accommodations,  which  it  is  the  duty  of  the  railway 
to  furnish.  lb.  Rut  if  this  be  done,  and  the  party  have  judgment  on  the 
verdict,  he  is  bound  to  make  the  erections.  Curtis  v.  Vermont  Central  Rail- 
road Co.,  23  Vt.  Gi:J.  One  tenant  in  common  cannot  proceed  iu  his  own  name 
to  have  the  damages  done  by  a  railway  to  the  common  land  assessed,  even 
where  he  has  authority  from  his  co-tenant  to  do  so.  Railroad  Co.  i;.  Bucher, 
7  Watts,  33. 

But  if  the  petition  be  signed  by  the  lessee  and  the  agent  of  the  owner  of 
mines,  this  is  a  sufficient  representation  of  the  interest.  Ilarvey  v.  Lloyd,  3 
Penn.  St.  331.  See  also  Shoenberger  v.  Mulhollan,  8  Penn.  St.  134.  And  see 
Cleveland  &  Toledo  Railroad  Co.  v.  Prentice,  13  Ohio  St.  373;  Strang  v.  Beloit 
&  Madi.son  Railroad  Co.,  16  Wis.  635.  It  is  here  said  that  the  description,  by 
way  of  an  approximating  diagram,  may  be  sufficient  without  an  actual  survey. 

'^  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  58; 
8.  c.  1  Am.  Railw.  Cas.  5o8. 

1*  Parker  r.  Boston  &  Maine  Railroad  Co.,  3  Cush.  107. 

"  Railroad  Co.  r.  Boyer,  13  Penn.  St.  497;  Directors  of  Poor  v.  Railroad 

lUilroad  Co.  r.  Munson,  20  Am.  &  Railroad  Co.,  lOG  111.  152;  Kankakee  & 
Eng.  Railw.  Cas.  410.  Seneca  Railroad  Co.  v.  Straut.  102  111. 
(ir)  The  jury  in  some  states  may  view  606;  Peoria  &  Farmington  Railway 
the  premises.  As  to  decisions  under  Co.  v.  Barnum,  107  111.  IGO;  \\  ash- 
statutes  giving  such  right,  see  Wake-  burn  r.  Milwaukee  &  Lake  Winnebago 
field  r.  Boston  &  Maine  Railroad  Co.,  Railroad  Co.,  59  Wis.  304;  Toledo, 
63  Me.  385;  Galena  &  Southern  Wis-  Ann  Arbor,  &  Grand  Trunk  Railway 
cousin  Railroad  Co.  v.  Haslam,  73  111.  Co.  r.  Duulap,  47  Mich.  456. 


401;  Mclleynolds  v.  Baltimore  &  Ohio 


[•272] 


286  EMINENT   DOMAIN.  [PART   III. 

12.  The  character  of  the  proof  admitted  to  enable  the  triers  to 
learn  the  value  of  land  is  so  various,  that  it  is  not  easy  to  fix  any 
undeviating  rule  upon  the  subject.  It  seems  to  have  been  the  in- 
tention of  the  courts  to  allow  only  strictly  legal  evidence  to  be 
received,  such  as  would  be  admissible  in  the  trial  of  similar  ques- 
tions before  a  jury  in  ordinary  cases.^^  (A) 

13.  It  has  been  allowed  to  show  what  price  the  company  had 
paid  by  voluntary  purchase  for  land  adjoining,  but  in  the  same 
case  it  was  held  not  competent  to  inquire  of  adjoining  land- 
owners, who  were  farmers,  and  had  occasionally  bought  and  sold 
land,  what  was  the  value  of  their  own  land  adjoining.^^   Nor  is  *  it 

Co.,  7  Watts  &  S.  236;  Pittsburg  &  Steuben  Railroad  Co.  v.  Hall,  25  Penn. 
St.  336.  In  Ross  r.  Elizabethtown  &  Somerville  Railroad  Co.,  Spencer,  230, 
it  was  said  to  be  the  duty  of  the  commissioners  to  assess  damages  to  joint 
owners  jointly.  See  also  Colcough  v.  Kashville  &  Northwestern  Railroad  Co., 
2  Head,  171. 

"  Troy  &  Boston  Railroad  Co.  v.  Northern  Turnpike  Co.,  16  Barb.  100; 
Johnson,  J.,  in  Rochester  &  Syracuse  Railroad  Co.  v.  Budlong,  6  How.  Pr. 
407;  Lincoln  v.  Saratoga  &  Schenectady  Railroad  Co.,  23  Wend.  425,  432. 

1**  Wyman  v.  Lexington  &  West  Cambridge  Railroad  Co.,  13  Met.  316. 
But  in  Robertson  v.  Knapp,  35  N.  Y.  91,  it  was  held,  that  farmers  and  resi- 
dents of  the  immediate  neighborhood  are  competent  to  fix  the  price  of  land  in 
their  vicinity ;  that  one  who  has  been  a  farmer,  but  has  changed  his  occupa- 

(h)  Washington,  Cincinnati,  &  St.  way  Co.,  59  Iowa,  243;  Watson  c. 
Louis  Railroad  Co.  v.  Switzer,  26  Grat.  Milwaukee  &  Madison  Railway  Co., 
601;  Peoria,  Atlanta,  &  Decatur  Rail-  57  Wis.  332;  Lehmicke  v.  St.  Paul, 
road  Co.,  71  111.  361.  Award  of  com-  Stillwater,  &  Taylor's  Falls  Railroad 
raissioners  as  evidence  on  subsequent  Co.,  19  Minn.  464.  Evidence  of 
trial  by  jury.  Ennis  v.  Wood  River  value  at  other  times.  Dietrichs  v. 
Branch  Railroad  Co.,  12  R.  I.  739.  Lincoln  &  Northwestern  Railroad 
Declarations  of  land-owner  as  evidence.  Co.,  12  Neb.  225;  Montclair  Rail- 
East  Brandywine& 'Waynesburg  Rail-  way  Co.  V.  Benson,  36  N.  J.  Law, 
road  Co.  v.  Ranck,  78  Penn.  St.  454;  557.  Other  evidence,  what  and  what 
Power  V.  Savannah  Railroad  Co.,  56  not  admissible.  Smalley  v.  Iowa  Pa- 
Ga.  471.  Evidence  of  annual  net  cific  Railroad  Co.,  36  Iowa,  571 ;  Pe^- 
profits  of  the  land  for  a  particular  use  ria  &  Pekin  Union  Railway  Co. 
held  inadmissible.  Stockton  &  Cop-  Peoria  &  Farmington  Railway  Co  , 
peropolis  Railroad  Co.  i;.  Galgiani,  49  105  111.  110;  Dreher  v.  Iowa  South- 
Cal.  139.  Evidence  of  sales  of  other  western  Railroad  Co.,  59  Iowa,  599; 
lands.  Pittsburg,  Virginia,  &  Charles-  Montclair  Railway  Co.  v.  Benson,  36 
ton  Railroad  Co.  v.  Rose,  74  Penn.  N.  J.  Law,  557;  Childs  t>.  New  Haven 
St.  362;  Stinson  v.  Chicago,  St.  Paul,  &  Northampton  Railroad  Co.,  133  Mass. 
&  Minneapolis  Railroad  Co.,  27  Minn.  253;  Boston  &  ]\Iaine  Railroad  Co.  v. 
2S1;  Everett  y.  Union  Pacific  Rail-  Montgomery,  119  Mass.  114. 
[*273J 


§  7:2.]  MODE   OF   PROCEDURE.  287 

competent  to  show  for  wliat  price  one  had  contracted  to  buy  land 
adjuining.^^  Nor  can  the  cUiimant  ])rove,  what  tlie  company  have 
offered  him  for  the  land;^**  nor  what  the  company  have  been  com- 
pelled to  pay  for  land  adjoining,  which  was  taken  compulsorily.^* 
*  14.  And  it  has  been  held  that  witnesses  cannot  he  allowed  to 
give  their  opinion  of  the  value  of  the  land  or  materials  taken.^  (e) 

tion  to  that  of  a  mechanic,  is  competent.  And  in  Shattnck  r.  Stoneham 
Branch  Kaih'oad  Co.,  6  Allen,  115,  it  was  held,  tliat  in  snch  proceedings  the 
land-owner,  being  a  competent  witness,  may  testify  to  his  opinion  of  the 
amount  of  damage  he  has  sustained,  and  may  prove  recent  sales  of  other  lands 
similarly  situated;  but  that  he  cannot  give  evidence  of  the  opinions  of  others. 
It  is  rather  matter  of  discretion  with  the  court,  whether  sales  of  other  lands 
were  sufficiently  recent,  or  the  land  sufficiently  like  that  in  question,  to  afford 
aid  to  the  jury.  And  on  such  hearing  the  company  may  prove  that  it  has 
located  a  passenger  station,  since  the  hearing  began,  near  the  petitioner's  land. 

'"  Chapin  v.  Boston  &  Providence  Railroad  Co.,  6  Cusli.  422. 

'^  Upton  V.  South  Reading  Railroad  Co.,  8  Cush.  COO. 

21  White  V.  Fitchburg  Railroad  Co.,  4  Cush.  440.  Only  such  damages  as 
are  peculiar  to  the  owner  of  the  land  taken,  and  not  those  common  to  all  land 
in  the  vicinity,  can  be  considered.  Freedle  v.  North  Carolina  Railroad  Co., 
4  Jones,  N.  C.  89.  It  has  been  held  that  the  benefits  resulting  to  the  land- 
owner from  the  construction  of  the  road  are  to  be  deducted,  in  estimating 
damages  for  land  taken  for  a  railway;  and  that  consequently  a  statute  providing 
for  such  deduction  is  not  for  that  reason  unconstitutional.  Columbus,  Piqua, 
&  Indiana  Railroad  Co.  v.  Simpson,  5  Ohio  St.  251.  But  as  the  constitution  of 
Ohio  expressly  requires  compensation  to  the  land-owner  to  be  made  in  moneii, 
it  seems  scarcely  consistent  to  say  that  the  benefits  to  the  land-owner  can  in  all 
cases  be  deducted,  since  in  some  cases  the  benefits  to  the  particular  piece  of 
land,  a  portion  of  which  is  taken,  might  more  than  compensate  for  that  which 
is  taken,  thus  leaving  nothing  to  be  compensated  "  in  money."  The  force  of 
this  embarrassment  was  felt  by  the  court  in  a  highway  case  in  Vermont,  where 
the  constitution  provides,  that  "  whenever  private  property  is  taken  for  public 
use,  the  owner  ought  to  receive  an  equivalent  in  money."  The  court  escaped 
from  its  embarrassment  by  saying,  that  as  the  constitution  applied  only  to  prop- 
erty "  taken  for  public  use,"  it  did  not  reach  cases  where  only  an  casement  in 
property  was  taken.  The  court  might,  with  almost  equal  propriety,  have  said, 
that  the  language  in  the  provision  of  the  constitution  "  ought  to  receive,"  be- 
ing in  the  optative  mood,  did  not  imply  an  imperative  duty,  as  few  persons  ex- 
pect to  nhtain  by  process  of  law  all  which  they  "  ouglit  to  receive."  Liverniore 
V.  Jamaica,  23  Vt.  301,  Rf.dfikld,  J.,  dissenting,  sub  silentio.  Supra,  §  71, 
pl.  0.  See  also  Cleveland  &  Pittsburg  Railroad  Co.  i\  Ball.  5  Ohio  St.  5GS; 
Kramer  v.  Cleveland  &  Pittsburg  Railroad  Co.,  5  Ohio  St.  140. 

"  Montgomery  &  West  Point  Railroad  Co.  v.  Varner,  19  Ala.  185;  Concord 

(0  Witnesses  may  not  give  their     in   gross.      Baltimore,    Pittsburg,    & 
opinion  as  to  the  amount  of  damages     Chicago  Railway  Co.  v.  Johnson,  59 

[-74] 


288  EMINENT    DOMAIN.  [PART   III. 

This  inquiry  leads  to  the  discussion  of  the  general  question  of 
what  matters  may  be  proved,  by  the  opinion  of  witnesses  Avho  are 
not  possessed  of  any  peculiar  knowledge,  skill,  or  experience 
upon  the  subject. 

15.  And  it  must  be  admitted  the  cases  are  not  altogether  rec- 
oncilable upon  the  subject.  Experts  are  admitted  to  express  their 
opinions,  not  only  upon  their  own  observation,  but  upon  testimony 
given  in  court  by  other  witnesses,  and  where  the  testimony  is 
conflicting,  upon  a  hypothetical  state  of  facts.-^     The  testimony 

Railroad  Co.  v.  Cxreely,  23  N.  II.  237 ;  Buffum  v.  New  York  and  Boston  Rail- 
road  Co.,  4  R.  I.  221  ;  Cleveland  &  Pittsburg  Railroad  Co.  r.  Ball,  5  Oliio 
St.  508.  But  the  witness  may  give  an  opinion  as  to  the  value  of  the  whole 
land,  both  before  and  after  the  location  of  the  road.  lb.  And  so  also  in 
Illinois  &  Wisconsin  Railroad  Co.  v.  Van  Horn,  18  111.  257.  See  also  Dorian 
V.  East  Brandywine,  &  Waynesburg  Railroad  Co.,  46  Penn.  St.  520.  In  East 
Pennsylvania  Railroad  Co.  t'.  Hiester,  40  Penn.  St.  53,  it  is  said  that  the  only 
proper  test  of  the  value  of  land  so  taken  is  the  opinion  of  witnesses  as  to  it.s 
value  in  view  of  its  location  and  productiveness,  its  market  value,  or  the 
general  selling  price  of  land  in  the  neighborhood.  And  this  seems  to  us  ex- 
ceedingly sensible  and  free  from  refinement  or  conceit.  See  also  East  Penn- 
sylvania Railroad  Co.  v.  Hottenstine,  47  Penn.  St.  28. 

23  1  Greenl.  Ev.  §  440.  Thus  the  testimony  of  persons  employed  in  making 
insurance  of  buildings  against  fire,  may,  in  actions  against  railways  for  conse- 
quential damages  to  buildings,  by  the  near  approach  of  the  track,  express  their 

Ind.  247,  480;  Baltimore,  Pittsburg,  &  road  Co.  v.  Arnold,  13  Neb.  485; 
Chicago  Railway  Co.  v.  Stoner,  59  Ind.  Snow  v.  Boston  &  Maine  Railroad  Co., 
579;  Brown  v.  Providence,  &  Spring-  65  Me.  230.  As  to  who  has  knowl- 
field  Railroad  Co.,  12  R.  I.  238.  Nor  edge  enough  to  testify,  see  Pittsburg 
as  to  separate  items  of  damage.  In  re  &  Lake  Erie  Railroad  Co.  v.  Robin- 
New  York,  West  Shore,  &  Buffalo  son,  95  Penn.  St.  426 ;  Pennsylvania 
Railway  Co.,  29  Ilun,  609.  Nor  as  &  New  York  Railroad  Co.  v.  Bunnell, 
to  the  value  of  the  land  subject  to  81  Penn.  St.  414;  Frankfort  &  Ko- 
the  right  of  way.  Fremont,  Elkhorn,  komo  Railroad  Co.  v.  Windsor,  51 
&  Missouri  Valley  Railroad  Co.  v.  Ind.  238;  Lehmicke  v.  St.  Paul,  Still- 
Whalen,  11  Neb.  585.  But  witnesses  water,  &  Taylor's  Falls  Railroad  Co., 
may  testify  to  their  opinion  of  the  19  Minn.  464;  Diedrichs  v.  Northwest- 
value  of  the  land.  Curtis  v.  St.  Paul,  ern  Union  Railway  Co.,  47  Wis.  6(52; 
Stillwater,  &  Taylor's  Falls  Railroad  Burlington  &  ]\Iissouri  River  Railroad 
Co.,  20  Minn.  28;  Sherwood  i'.  St.  Co.  y.  Schluntz,  14  Neb.  421.  A  far- 
Paul  &  Chicago  Railroad  Co.,  21  mer  may  testify  as  an  expert  as  to 
Minn.  127;  Sherman  v.  St.  Paul,  Min-  the  value  of  land  for  farm  purposes, 
neapolis,  &  Manitoba  Railway  Co.,  but  not  generally.  Brown  v.  Provi- 
30  Minn.  227;  Indianapolis,  Decatur,  dence  &  Springfield  Railroad  Co.,  12 
&  Springfield  Railroad  Co.  v.  Pugh,  R.  I.  238;  Kansas  Central  Railway 
85  Ind.  279:  Republican  Valley  Rail-  Co.  v.  Allen,  24  Kan.  33. 
[*274] 


§  Tli.]  MODE   OF    PROCEDURE.  289 

of  such  witnesses  is  intended  to  serve  a  double  purpose,  that  of 
instruction  to  the  jury  upon  the  general  question  involved,  and 
elucidation  of  the  particular  question  to  l)e  considered  by  thcm.^^ 
Tiic  resort  to  the  assistance  and  instruction  of  persons  skilled  in 
j)articular  departments  of  art  or  science  is  constantly  adverted 
to,  as  of  great  advantage  in  enabling  the  triers  to  properly  com- 
prehend those  sul)j('Cts  out  of  the  range  of  their  general  knowl- 
edge, *  or  the  i)articular  studies  of  judges,  or  jurors,  in  some  of 
the  best-considered  English  cases,  within  the  last  few  years.^* 
I)ut  the  testimony  of  scientific  witnesses  will  not  establish  facts 
in  conflict  with  the  axiomatic  principles  of  science  and  philos- 
ophy, or  those  which  contradict  the  evidence  of  the  senses  or  of 
consciousness.^* 

16.  But  there  is  certainly  a  very  considerable  number  of  sub- 
jects, in  regard  to  which  the  jury  are  supposed  to  be  well  in- 
structed, and  altogether  capable  of  forming  correct  opinions,  and 
in  regard  to  which  the  testimony  of  experts  is  not  competent,  or 
not  requisite,  but  which  it  is  more  or  less  difficult  for  the  wit- 
nesses to  describe  accurately,  so  as  to  })lace  them  fully  before  the 
minds  of  the  jury,  as  they  exist  in  the  minds  of  the  witnesses. 
Among  these  are  inquiries  in  regard  to  the  extent  of  one's  projv 
crty,  solvency,  health,  affection,  or  antipathy,  character,  sanity, 
and  some  others.  In  such  cases  the  witnesses'  knowledge  is 
chiefly  matter  of  opinion,  and  it  is  impossible  to  enumerate  each 
l)articular  fact.  Of  this  character  seem  to  us  to  be  questions  in 
regard  to  the  quality  and  value  of  property.  One  may  enumerate 
some  of  the  leading  facts  upon  which  such  an  opinion  is  based  ; 
but  after  all,  the  testimony  as  to  facts  is  excessively  meagre, 
without  the  opinion  of  the  witness,  either  ujxin  the  very  sul)ject 
of  in(iuiry,or  some  one  as  near  it  as  can  be  supposed.  Hence  in 
those  courts  where    the   opinion  of  witnesses,  in   regard  to   the 

opinion  of  the  effect  thereby  produced  on  the  rent,  or  the  rate  of  insurance  of 
such  buildings.  Webber  v.  Eastern  Raiboad  Co.,  2  Met.  147.  See  also 
Henry  v.  Dubuque  &  Pacific  Railroad  Co.,  2  Clarke,  288.  And  in  theca.se  of 
Brown  V.  Providence,  Warren,  &  Ikistol  Railroad  Co.,  5  Gray,  35,  it  was  lield. 
that  the  company  could  not  show  that  liquors  were  .sold,  or  to  be  sold,  on  land, 
as  a  part  of  the  inducement  to  pay  so  hicrh  a  rent,  or  that  it  was  "  contemplated" 
having  a  station  near  the  point;  such  testimony  being  too  indefinite  and 
remote. 

2^  Broadbent  r.  Imperial  Gas  Co.,  7  De  G.  M.  &  G.  430,  400,  per  howl  Chan- 
cellor Craxworth. 

VOL.  I.— 19  [*27o] 


290  EMINENT    DOMAIN.  [PART    III. 

value  of  property,  real  or  personal,  is  not  admitted,  it  leads  to 
sundry  shifts  and  evasions,  in  the  course  of  the  examination  of 
witnesses  upon  that  subject,  which,  while  it  is  not  a  little  embar- 
rassing in  itself,  at  the  same  time  illustrates  the  inconsistency, 
not  to  say  absurdity,  of  the  rule.-^ 

25  See  the  opinion  of  the  court  in  Concord  Railroad  Co.  v.  Greely,  2-'*  N.  H. 
237.  On  an  inquiry  as  to  the  vahie  of  a  cargo  of  flour,  it  would  sound  strange  to 
hear  ^vitnesses  testify  what  precisely  similar  flour  is  worth,  and  at  the  same 
time  hear  tliem  gravely  told,  that  they  were  studiously  to  avoid  expressing  any 
opinion  as  to  the  value  of  this  very  flour,  which  they  had  seen  and  examined, 
aud  in  regard  to  which  the  whole  testimony  was  received.  Yet,  such  is,  from 
necessity,  the  course  resorted  to  under  the  rule.  The  more  general  course  is, 
we  think,  to  receive  the  opinion  of  witnesses  acquainted  with  the  property  and 
the  state  of  the  market,  as  to  the  value  of  the  particular  property  in  question. 
White  V.  Concord  Railroad  Co.,  10  Fost.  N.  H.  188.  But  in  New  Hampshire, 
it  has  been  held,  that  the  opinion  of  witnesses  in  regard  to  apparent  health  is 
competent,  and  this  seems  to  be  yielding  the  main  point  of  exclusion  before 
insisted  on.  Spear  v.  Richard.son,  3i  N.  H.  428.  ]n  the  same  case  the  opinion 
of  witnesses  as  to  whether  a  hor.se  was  sound,  or  had  the  heaves,  was  excluded 
because  the  witness  was  not  .shown  to  be  an  expert.  Naturally  the  jud^^e  re- 
garded the  distinction  as  "somewhat  nice."  And  in  Currier  v.  Boston  & 
Maine  Railroad  Co.,  34  N.  II.  498,  it  was  held  that  a  witness  could  give  an 
opinion  in  regard  to  the  occurrence  of  hardpan  in  an  excavation;  and  in  Hackett 
■V.  Boston,  Concord,  &  Montreal  Railroad  Co.,  3o  N.  H.  390,  it  was  held  that 
a  witness  might  express  an  opinion  in  regard  to  distances,  dimensions,  and 
qualities.  See  also  Rochester  &  Syracuse  Railroad  Co.  r.  Budlong,  6  How. 
Pr.  4G7. 

In  Illinois  &  Wisconsin  Railroad  Co.  i'.  Van  Horn,  18  111.  257,  it  is  held 
that  it  is  proper  to  have  the  opinion  of  witnesses  in  regard  to  the  value  of  city 
lots,  "as  they  have  no  stated  value."  Butler  v.  Mehrling,  15  111.  488;  Kel- 
logg V.  Krauser,  14  S.  &  R.  137.  In  Cleveland  &  Pittsburg  Railroad  Co.  v. 
Ball,  5  Ohio  St.  568,  it  is  said  that  witnesses  may  be  allowed  to  express  an 
opinion  as  to  the  value  of  the  land  taken,  but  not  as  to  the  extent  of  damages 
which  the  land-owner  will  sustain  by  the  appropriation  of  the  land  to  public 
use,  that  being  the  very  que.stion  to  be  settled  by  the  triers.  This  seems  to 
place  the  matter  on  its  proper  basis.  One  must  have  had  experience  bear- 
ing on  the  particular  point,  in  order  to  give  an  opinion  of  the  extent  of  the  in- 
jury caused  thereby,  and  it  is  not  sufficient  that  he  may  have  had  experience 
and  skill  in  other  matters  pertaining  to  the  building  and  operation  of  rail- 
ways. Boston  &  Worcester  Railroad  Co.  v.  Old  Colony  &  Fall  River  Railroad 
Co.,  3  Allen,  142.  The  court  have  declined  to  set  aside  the  verdict  for  land 
damages,  because  testimony  of  the  sale  of  upland  at  a  considerable  distance 
from  the  wharf,  and  of  the  price  paid  four  months  before  the  time  of  making 
the  location,  was  received,  and  also  of  the  number  of  trains  passing  over  the 
land  taken,  and  of  the  number  of  vessels  and  amount  of  lunaber,  wood,  coal, 
&c.,  coming  to  the  wharf. 

[*2ToJ 


§  72.]  MODE   OF   PROCEDURE.  291 

*  17.  Ill  rcG^an]  to  costs,  in  siicli  procecdiiiirs,  the  more  general 
I'lilc  is  not  to  allow  them,  unless  specilieally  given  by  statute.^'^  (j) 
*  Ijut  where  the  statute  ))i()vi<l('s  for  an  assessment  of  land  dam- 
ages, by  a  jury,  at  the  suit  of  the  party  aggrieved,  the  costs  to  be 
paid  by  the  company,  this  was  held  not  to  include  the  fees  of 
witnesses  examined  by  the  jury,  on  the  part  of  the  claimant.^' 

18.  13ut  the  terms  "  costs  and  expenses  incurred,"  were  held  to 
include  the  costs  of  witnesses  and  of  summoning  the  viewers.^ 

l*.t.  If  the  act  makes  no  provision  for  compensation  to  the  com- 
missioners, they  have  no  power  to  order  the  company  to  pay  the 
cost  of  their  ex])enses  and  services. '"^'-^ 

20.  l>ut  where  the  ])arty  whose  costs  are  rightfully  denied  in 
the  Court  of  Common  Pleas,  appeals  upon  that  question,  and  the 
judgment  is  afTn'med,  he  must  pay  costs  to  the  other  party  conse- 
quent upon  the  aj»pcal."^^ 

28  Herbein  v.  Railroad  Co  ,  9  Watts,  272.  The  Englisli  statute,  8  Vict.  c.  18, 
provides  that  where  the  land-owner  refuses  an  offer  equal  to  or  exceeding  his 
recovery,  he  shall  recover  no  costs.  This  is  construed  to  embrace  all  offers  up 
to  the  time  of  the  land-owner  taking  steps  to  have  his  case  tried.  Lord  Fitz- 
Hardiiige  v.  Gloucester  &  Berkeley  Canal  Co.,  20  W.  R.  800.  The  party  tak- 
ing the  initiative  in  proceedings  to  estimate  land  damages  under  this  statute 
is  required  to  state  at  what  price  he  will  sell  or  purchase  the  land,  and  the 
other  party  may  accept  or  modify  the  offer,  and  costs  are  awarded  with  refer- 
ence to  the  party  obtaining  an  assessment  better  for  him  than  the  offer  of 
the  other  party.      This  seems  reasonable,  independent  of  the  statute. 

'•^  Railroad  Co.  v.  Johnson,  2  Whart.  275. 

^  Pennsylvania  Railroad  Co.  r.  Keiffer,  22  Penn.  St.  35G ;  Chicago  &  ^lil- 
waukee  Railroad  Co.  v.  Bull,  20  111.  218. 

^  Atlantic  &  St.  Lawrence  Railroad  Co.  v.  Commissioners,  28  Me.  112. 

^^  Harvard  Branch  Railroad  Co.   v.  Rand,  8  Cush.  218;   Commonwealth  v. 

(/)  fn  re  Xew  York,  Lackawanna,  pay,  and  what  taxable.  Conway  r- 
&  Western  Railway  Co.,  G:i  How.  Pr.  McCiregor  &  Mis.souri  River  Railroad 
123;  Metier  v.  Easton  &  Amboy  Rail-  Co.,  43  Iowa,  32;  People  v.  McRoberts, 
road  Co.,  37  N.  J.  Law,  222.  As  to  G2  111.  38  ;  Rensselaer  &  Saratoga  Rail- 
what  is  projHMly  charged  as  costs,  road  Co.  r.  Davis,  55  N.  Y.  115;  Good- 
see  Bliss  V.  Connecticut  &  Passump-  win  v.  Boston  &  Maine  Railroad  Co., 
sic  Rivers  Railroad  Co.,  47  Vt.  715;  G3  Me.  3(i3;  //*  re  Syracuse,  Bing- 
Roble  r.  Albia,  Knoxville,  &  Des-  liaTnton,  ^  Xew  York  Railroad  Co., 
Moines  Railroad  Co.,  44  Iowa,  410.  4  Hun,  311 ;  Metier  r.  Easton  &  Amboy 
Costs  on  abandonment  of  proceedings.  Railroad  Co.,  37  N.J.  Law,  222;  Car- 
Loisse  V.  St.  Louis  &  Iron  Mountain  olina  Central  Railway  Co.  i.  Phillips, 
Railroad  Co..  2  Uo.  Ap.  105;  s.  c.  72  78  X.  C.  40:  Xew  Orleans  Pacitic  Rail- 
Mo.  501.     Costs  on  appeal,  who  must  way  Co.  c.  Gav,  31  La.  \n.  UW. 

[*27G,  *277] 


292  EMINENT    DOMAIN.  [PART    III. 

21.  It  is  no  objection  to  the  competency  of  a  juror,  in  this  class 
of  cases,  that  he  had  been  an  appraiser  of  damages  upon  another 
railway,  in  the  same  county,  or  that  he  is  a  stockholder  in 
another  railway  which  had  long  before  acquired  the  lands  neces- 
sary for  its  use.^^  (Z:) 

*  22.  Courts  do  not  generally  possess  the  power  to  revise  the 
assessment  of  land  damages,  by  a  jury  or  other  tribunal  appointed 
by  them  for  that  purpose,  upon  its  merits,  and  set  it  aside,  upon 
the  mere  ground  of  inadequacy  or  excess  of  damages.^^  (^) 

23.  Where  commissioners  assessed  land  damages  at  a  sum 
named,  and  stated  further,  that  the  plaintiff  was  to  receive  an  ad- 
ditional sum  in  a  certain  contingency,  and  the  report  became 

Boston  &  Maine  Railroad  Co.,  3  Cush.  56.  But  see  supra,  §  71,  note  12,  in 
regard  to  tlie  course  of  proceeding,  in  estimating  land  damages.  Where  the 
statute  gives  an  appeal,  in  estimating  land  damages,  to  a  court  of  common-law 
jurisdiction,  and  does  not  jirescribe  the  mode  of  trying  the  appeal,  it  will  be  tried 
by  commissioners,  the  usual  triers  in  cases  of  that  class,  in  common-law  courts. 
And  a  statute  permitting  a  trial  by  jury,  in  all  cases  proper  for  a  jury,  will 
not  alter  the  mode  of  trial.     Gold  v.  Vermont  Central  Railroad  Co.,  19  Vt.  478. 

8'  People  V.  First  Judge  of  Columbia,  2  Hill,  N.  Y.  398.  The  tribunal  for 
assessing  land  damages  should  be  free  fi'om  interest  or  bias  in  order  to  meet 
the  constitutional  requirement  for  just  compensation.  Powers  i\  Bears,  12 
Wis.  213.  But  see  Strang  v.  Beloit  &  Madison  Railroad  Co.,  16  Wis.  635. 
But  where  it  clearly  appears  that  injustice  has  been  done  through  some  mis- 
take or  misapprehension  of  the  jury,  the  verdict  should  be  set  aside.  Cadmus 
V.  Central  Railroad  Co.,  2  Yroom,  179. 

32  Willing  V.  Baltimore  Railroad  Co.,  5  Whart.  460.  As  to  what  is  good 
cause  for  setting  aside  the  report  of  commissioners,  see  Bennet  i\  Camden  & 
Amboy  Railroad  Co.,  2  Green,  145;  Van  Wickle  v.  Railroad  Co.,  2  Green,  162; 
Rochester  &  Syracuse  Railroad  Co.  v.  Budlong,  6  How.  Pr.  467.  In  Missouri, 
■when  the  report  of  commissioners  is  set  aside,  the  court  must  appoint  a  new 
board.  Hannibal  &  St.  Joseph  Railroad  Co.  v.  Rowland,  29  Mo.  337.  But 
this  rule  will  not  apply  where  the  report  is  recommitted  to  the  same  board, 
with  instructions  to  pursue  a  different  rule  in  estimating  damages.     lb. 

(k)  Nor  that  he  is  a  subscriber  in  Railway    Co.    v.    Barnes,    40    !Mich. 

aid  of  a  company  lessor  of  the  road  383. 

for  whose  use  the  land  is  to  be  con-  (/)  But  see  In  re  New  York  Cen- 

demned.      Detroit    Western    Transit  tral  &  Hudson  River  Railroad  Co.,  5 

Railroad  Co.  v.  Crane,  50  JNIich.  182.  Hun,    105;    s.  c.   64  N.  Y.  60.     See 

But  it  is  an  objection  that  he  has  also  Philadelphia  &  Erie  Railroad  Co. 

given  his  note  to  aid  in  the  construe-  v.  Cake,  95  Penn.  St.  139,  which  holds 

tion  of  the  road.     Nor  can  the  dis-  that  the  court  may  set  aside  the  report 

qualification    be   removed    by   agree-  of    the   viewers   where   the    damages 

ment  of  parties.     Michigan  Air  Line  awarded  are  grossly  excessive. 
[*278] 


§  72.]  MODE   OF    PROCEDURE.  203 

matter  of  record,  it  was  held  that  debt  would  not  lie   for  the  ad- 
ditional sum,  upon  averring  the  hapj)cuing  of  the  contingency.^ 

24.  Where  the  statute  gave  the  court  a  discretion,  to  accept 
and  confirm  the  inquest  of  land  damages,  or  order  a  new  inquest, 
"•  if  justice  shall  seem  to  recjuire  it,"  it  was  held  they  might  set 
aside  the  report  for  mere  excess  of  damages,  and  that  the 
Supreme  Court  might  do  the  same,  when  the  proceedings  are 
brought  uj)  by  certiorari?^  Qm} 

8'  Winchester  &  Potomac  Railroad  Co.  v.  Wasliiugton,  1  Rob.  Va.  67. 
See  also  Dimick  v.  Brooks,  21  Vt.  5G9. 

8*  remisylvaiiia  Railroad  Co.  i;.  Iltister,  8  Penn.  St.  445;  s.  c.  2  Am.  Railw. 
Civs.  337. 

There  are  oilier  decisions  on  matters  of  practice  in  assessing  land  damages: 
All  the  commissioners  must  be  present  and  act,  in  all  matters  of  a  judicial 
character.  Crocker  v.  Crane,  21  Wend.  211 ;  s.  c.  1  Redf.  Am.  Railw.  Cas.  42. 
In  regard  to  the  mode  of  selecting  and  impanelling  juries,  for  assessing  land 
damages  against  railways,  see  Pennsylvania  Railroad  Co.  v.  Ileister,  supra, 
which  decides  that  where  the  statute  recpiires  the  sheriff  to  summon  the 
jury,  it  is  irregular  for  him  to  select  them  from  a  list  prepared  by  his  deputy; 
and  see  Vail  i'.  ^lorris  &  Essex  Railroad  Co.,  1  Zah.  189,  where  it  is  held, 
tliat  commissioners  appointed  to  value  the  land  of  a  person  named  on  one 
route,  adopted  by  the  company,  cannot  appraise  the  land  of  the  same  person, 
when  the  company  adopt  a  different  route  across  the  land. 

In  regard  to  the  right  of  appeal,  which  is  given  in  terms  to  the  party 
aggrieved,  it  has  been  held  to  extend  to  the  railway  company,  as  well  as 
the  land-owner.  Kimball  v.  Kennebec  &  Portland  Railroad  Co.,  35  Me. 
255. 

In  New  York  no  appeal  lies  from  the  order  of  the  Supreme  Court,  con- 
firming the  report  of  commissioners  on  the  appraisal  of  land  damages  for  land 
taken  nnder  the  general  railway  act.  The  act  provides  for  no  such  appeal, 
and  the  remedy,  in  the  act,  is  intended  to  be  exchisive.  And  besides,  the 
Supreme  Court  exercises  a  discretion,  to  some  extent,  in  confirming  such  re- 
l>orts,  and  on  general  principles  an  appeal  would  not  lie  to  revise  such  ailjudi- 
cations.  New  York  Central  Railroad  Co.  v.  ]Marvin,  11  N.  Y.  270;  Troy  & 
Boston  Railroad  Co.  v   Northern  Turnpike  Co.,  10  Barb.  100. 

Where  the  special  act  of  a  railway  company  required  ten  days'  notice  to 
the  land-owner  of  the  time  when  a  jury  would  bo  drawn  to  assess  damages, 
it  was  held  that  a  strict  compliance  with  that  requirement  was  necessary  to 
jurisdiction,  and  that  the  objection  was  not  waived  by  appearance  before  the 
officer  at  the  time  the  jury  was  drawn,  and  objection  to  the  regularity  of  the 
proceedings  without  stating  the  grounds,  or  by  appearance  before  the  jury, 

(m)  A  motion  to  set  aside  the  ver-  port  ^  Bangor  Railroad  Co.,  64  Me. 
diet  is  addressed  to  the  court  to  which  130.  Verdict  will  not  be  set  aside  for 
the  verdict  is  returned.    Burr  v.  Bucks-     improper  admission  of  evidence  unless 

[*278] 


294  EMINENT   DOMAIN.  [PAIIT   111. 

*  25.  It  does  not  seem  important,  where  the  statute  in  terms 
allows  cither  party  to  take  compulsory  proceeding  to  assess  land 

when  on  their  meeting  to  appraise  the  damages,  and  objection  to  one  of  them, 
wlio  was  set  aside.     Cruger  v.  Hudson  lliver  Raih'oad  Co.,  12  N.  Y.  190. 

IMere  informalities  in  the  summons,  which  do  not  mislead  the  companj', 
will  not  avoid  the  proceeding.  Eastham  v.  Blackburn  Railway  Co.,  9  Exch. 
758;  s.  c.  25  Eng.  L.  &  Eq.  498. 

It  is  not  important  that  the  award  should  specify  the  finding  on  the  separate 
items  of  claim.     In  re  Bradshaw,  12  Q.  B.  562. 

Where  a  special  act  prescribes  a  mode  of  procedure,  in  condemning  land, 
different  from  that  required  by  a  general  law  of  the  state  subsequently  passed, 
the  company  may  pursue  the  course  prescribed  by  the  special  act.  Clarkson 
V.  Hudson  River  Railroad  Co.,  12  N.  Y.  304.  But  it  seems  to  be  here  con- 
sidered, that  the  company  may,  on  the  contrary,  adopt  the  course  prescribed 
by  the  general  act.  And  on  general  principles  it  would  seem  that  it  should 
do  so,  unless  there  is  something  in  the  general  act  by  which  the  existing  rail- 
ways are  at  liberty  to  proceed  under  their  charters.  This  is  the  ground  of  the 
decision  in  the  last  case.     Xorth  Missouri  Railroad  Co.  v.  Gott,  25  Mo.  540. 

Where  the  company's  special  act  vests  specific  powers  for  the  benefit  of  the 
public,  as  to  build  stations  of  given  dimensions  larger  than  the  general  act 
provides,  it  is  not  controlled  by  subsequent  general  acts.  London  &  Blackwall 
Railway  Co.  v.  Board  of  Works,  3  Kay  &  J.  123;  s.  c.  28  Law  T.  140.  In 
regard  to  the  mode  of  proceeding  in  such  cases,  see  Coster  v.  New  Jersey  Rail- 
road &  Transportation  Co.,  4  Zab.  730;  Green  v.  Morris  &  Essex  Railroad  Co., 
4  Zab.  486;  Pittsfield  &  North  Adams  Railroad  Co.  v.  Foster,  1  Cush.  480. 

substantial  injustice   has  been  done,  motion  to  confirm,  will   not   deprive 

Detroit,  Western  Transit,  &  Junction  the  court  of  jurisdiction  already  ac- 

Kailroad  Co.  v.  Crane,  50  Mich.  182.  quired.     Allen    v.    Utica,    Ithaca,   & 

Jurisdiction.  —  Service  of  process  by  Elmira    Railroad   Co.,    15    Hun,    SO. 

collusion  on  one  not  interested  in  the  Jurisdiction  is  not  open  to  question  in 

land  gives  no  jurisdiction.     Dunlap  v.  collateral  proceedings.     Townsend  v. 

Toledo,  Ann  Arbor,  &  Grand  Trunk  Chicago   &   Alton    Railroad   Co.,  91 

Railway  Co.,  46  Mich.  190.     Service  III.  545. 

must   be    made,    when.     Bowman    v.  Pleading!^,  Practice,  Evidence,  ^'c. — 

Venice    &  Carondelet    Railway    Co.,  Land  must  be  described,  how  in  plead- 

102  111.  472;  Liebengut  r.  Louisville,  ings.  Indianapolis  &  Vincennes  Rail- 
New  Albany,  &  St.  Louis  Railway  Co.,  road   Co.   v.   Newsom,    54   Ind.    121 ; 

103  111.  431.  Petition  must  make  Spofford  v.  Bucksport  &  Bangor  Rail- 
prima  facie  case.  State  v.  Hudson  road  Co.,  66  Me.  20;  In  re  New  Yoik 
Tunnel  Railroad  Co.,  38  N.  J.  Law,  Cetitral  &  Hudson  River  Railroad  Co., 
548;  Quayle  v.  Missouri,  Kansas,  &  70  N.  Y.  191 ;  Lower  ».  Chicago,  Bur- 
Texas  Railway  Co.,  03  Mo.  465;  Spof-  lington,  &  Quincy  Railroad  Co.,  59 
ford  V.  Bucksport  &  Bangor  Railroad  Iowa,  563.  Allegation  of  special  dam- 
Co.,  06  Me.  26;  Smith  v.  Chicago  &  age.  North  Pacific  Railroad  Co.  i'. 
Western  Indiana  Railroad  Co.,  105  Reynolds,  50  Cal.  90.  Filing  of  answer 
111.    511.     Failure   to  serve  notice  of  unnecessary    in     Illinois.     Smith    v. 

[*279] 


§  72.] 


MODE   OF    PROCEDUIiE. 


295 


tlainuLros  upon  Uio  parties  failing  to  agree,  that  there  shouM  have 
been  any  jirevious  attcmj)t  to  agree,  in  order  to  give  jurisdiction 
to  the  courts  to  assess  the  amount  of  such  compensation.*^ 

•*  Bigelow  V.  Mississippi  Central  &  Tennessee  Railroad  Co.,  2  Head,  G24. 


Chicago  &  We.stfMii  Indiana  Ilailroad 
Co.,  105  III  511.  Amendment  of 
petition.  In  re  New  Yoilc  &  West 
Shore  Railroad  Co.,  89  N.  Y.  45:i. 
Dismissal  of  proceedings.  St.  Louis, 
Fort  Scott,  &  Wisliita  Railroad  Co. 
V.  Martin,  '29  Kan.  750.  Opening  of 
default  when  default  is  excu.sed.  In 
re  New  York,  Lackawanna,  &  Western 
Railroad  Co.,  03  X.  Y.  385.  AVliat 
evidence  admissible.  Quincy,  ]\lis- 
souri,  &  Pacific  Railroad  Co.  v.  Ridge, 
57  Mo.  590;  Wilmington  &  Reading 
Railroad  Co.  v.  Iligli,  S9  Penn.  St. 
282.  Conditions  precedent  must  be 
performed.  Kansas  City,  St.  Joseph, 
&  Council  Bluffs  Railroad  Co.  v. 
Campbell,  02  Mo.  585.  Other  matters 
of  practice.  Port  Huron  &  South- 
western Railway  Co.  v.  Voorheis,  iJO 
Mich.  50(J;  East  Tennessee  Railroad 
Co.  V.  Burnett,  11  Lea,  525;  Galena 
&  Southern  Wisconsin  Railroad  Co.  v. 
Rirkbeck,  70  111.  208.  Irregularity  of 
proceedings  as  affecting  validity  of 
a.s.sessment.  Detroit,  Monroe,  &  To- 
ledo Railroad  Co.  v.  Detroit,  49  Mich. 
47.  Effect  of  abandonment  of  pro- 
ceedings. Seine  v.  St.  Louis  &  Iron 
Mountain  Railroad  Co.,  72  Mo.  5G1. 

Report,  Jiitlf/incnt,  Sf-c.  —  Description 
in  award.  Michigan  Air  Line  Rail- 
way Co.  V.  Barnes,  44  Mich.  222; 
Morgan  r.  Chicago  &  Northeastern 
Railroad  Co.,  39  Mich.  G75.  Award, 
how  made  where  there  are  several 
owners.  Rusch  v.  Milwaukee,  Lake 
Shore,  &  Western  Railway  Co.,  51 
Wis.  130.  Return,  how  made  under 
statutes  of  Massachusetts.  Wyman  v. 
Eastern  Railroad  Co.,  128  Mass.  346. 


Exceptions,  what  sufTicient.  Tucker 
I'.  Massachusetts  Central  Railroad  Co., 
110  !Mass.  124.  Report  of  commi.s- 
sioners.  Crawford  v.  Valley  Railroad 
Co.,  25  Grat.  407;  Childs  v.  New 
Haven  &  Northampton  Railroad  Co., 
133  Mass.  9.b'i.  Conclusiveness  of 
second  award.  Provalt  r.  Chicago, 
Rock  Island,  &  Pacific  Railroad  Co., 
09  Mo.  033;  In  re  Prospect  Park  & 
Coney  Island  Railroad  Co.,  27  Hun, 
184.  Report,  when  set  aside.  Pueblo 
&  Arkansas  Valley  Railroad  Co.  v. 
Rudd,  5  Col.  270.  Judgment,  entry, 
form  and  effect.  Chesapeake  &  Ohio 
Railroad  Co.  r.  Bradford,  6  W.  Va. 
220;  Curtis  r.  St.  Paul,  Stillwater,  & 
Taylor's  Falls  Railroad  Co.,  21  Minn. 
497;  Indianapolis  &  St.  Louis  Rail- 
road Co.  V.  Smythe,  45  Ind.  322;  Penn- 
sylvania Railroad  Co.  v.  Gorsuch,  84 
Penn.  St.  411;  Robbins  v.  St.  Paul, 
Stillwater,  &  Taylor's  Falls  Railroad 
Co.,  24  Minn.  191;  Chicago  &  West- 
ern Indiana  Railroad  Co.  v.  Prussing, 
90  111.  203;  Williams  i'.  New  Orleans, 
Mobile,  cSc  Texas  Railroad  Co..  GO  Miss. 
089;  Secorabe  r.  Railroad  Co.,  23  Wall. 
108.  Execution,  form,  entry,  nunc 
pro  tunc,  stay.  St.  Louis,  Lawrence, 
&  Denver  Railroad  Co.  v.  Wilder,  17 
Kan.  239;  Lexington  &  St.  Louis  Rail- 
road Co.  V.  Mockbee,  03  Mo.  348; 
Harrisburg  &  Potomac  Railroad  Co. 
V.  Peffer,  84  Penn.  St.  295.  Conuni.s- 
sioners  may  not  amend  record  by  in- 
serting names  of  new  parties.  Little- 
field  )'.  Boston  &  Maine  Railroad  Co., 
65  ^le.  248.  Verdict  sufficiently  cer- 
tain. Illinois  Western  Extension 
Railroad  Co.  c.  Mayrand,  93  111.  591. 

[♦279J 


296 


EMINENT  DOMAIN. 


[part   III. 


26.  It  has  been  decided  that  where  land  is  taken  for  a  railway, 
the  owner  is  entitled  to  recover  damages  assessed,  as  of  the  time  of 
taking,  with  interest  thereon  to  the  time  of  the  assessment.^^  (ti) 

8"  Reed  v.  Hanover  Branch  Railroad  Co.,  105  Mass.  303. 


Must  be  for  money  and  not  for  labor. 
New  Orleans  Pacific  Railway  Co.  i'. 
Murrell,  '^i  La.  An.  53G.  Correction 
of  verdict.  St.  Paul  &  Sioux  City 
Railroad  Co.  v.  Murphy,  19  Minn.  500. 
What  finding  sufficient.  East  Sagi- 
naw &  St.  Clair  Railroad  Co.  v.  Ben- 
ham,  28  Mich.  459. 

Appeal  and  Error,  ^'c.  — Taking  of 
appeal  and  its  effect  as  an  appearance, 
waiving  want  of  notice.  Beckwith  v. 
Kansas  City  &  Olathe  Railroad  Co., 
28  Kan.  481;  Atchison,  Topeka,  & 
Santa  Fe  Railroad  Co.  v.  Patch,  28 
Kan.  470.  Bond  on  appeal,  when 
filed,  what  sufficient  amendment,  &c. 
Rippe  ?'.  Chicago,  Dubuque,  &  Min- 
nesota Railroad  Co.,  22  Minn.  44;  St. 
Louis,  Lawrence,  &  Denver  Railroad 
Co.  V.  Wilder,  17  Kan.  239;  Nebraska 
Railway  Co.  v.  Van  Dusen,  6  Neb.  160; 
Sehna,  Rome,  &  Dalton  Railroad  Co. 
V.  Gamraage,  63  Ga.  604;  Lovitt  v. 
Willington  &  Western  Railway  Co., 
26  Kan.  297.  As  to  where  certiorari 
will  lie,  &c.,  see  California  Pacific 
Railroad  Co.  v.  Central  Pacific  Rail- 
road Co.,  47  Cal.  528;  Portland  &  Og- 
densburg  Railroad  Co.  o.  Commission- 
ers, 64  Me.  505;  Schroeder  v.  Detroit, 
Grand  Haven,  &  Milwaukee  Railroad 
Co.,  44  Mich.  ;?87;  Dunlap  v.  Toledo, 
Ann  Arbor,  &  Grand  Trunk  Railway 
Co.,  46  Mich.  390.  As  to  what  is  open, 
Republican  Valley  Railroad  Co.  v. 
Hayes,  13  Neb.  489.  Notice  of  appeal, 
how  signed,  how  served,  publication. 
East  Saginaw  &  St.  Clair  Railroad  Co. 
r.  Benham,  28  Mich.  459;  Haher  v. 
Chicago,  Omaha,  &  St.  Joseph  Rail- 
road Co..  43  Iowa,  333;  Weyer  v. 
[*279] 


Milwaukee  &  Lake  Winnebago  Rail- 
road Co.,  57  Wis.  329;  In  re  New 
York  Central  &  Hudson  River  Rail- 
road Co.,  60  N.  y.  112;  Klein  v.  St. 
Paul,  Minneapolis,  &  Manitoba  Rail- 
way Co.,  30  Minn.  451.  Who  may 
appeal,  purchaser  pending  appeal. 
Bower  r.  Grayville  &  INIattoon  Rail- 
road Co.,  92  Rl.  223;  Trogden  i-.  Win- 
ona &  St.  Peter  Railroad  Co.,  22  Minn. 
198;  Connable  v.  Chicago,  Milwaukee, 
&  St.  Paul  Railway  Co.,  10  Am.  &  Eng. 
Railw.  Cas.  520.  Joinder  of  husband. 
Wilkin  V.  St.  Paul,  Stillwater,  &  Tay- 
lor's Falls  Railroad  Co.,  22  Minn. 
177.  P^ffect  of  appeal  to  carry  up 
the  whole  case.  Phifer  v.  Carolina 
Central  Railroad  Co.,  72  N.  C.  433; 
Wooster  v.  Snp;ar  River  Valley  Rail- 
road Co.,  57  Wis.  311.  Deposit  by 
company  pending  appeal  of  sum  found, 
and  withdrawal  of  same.  Toledo, 
Ann  Arbor,  &  Grand  Trunk  Railway 
Co.  V.  Dunlap,  47  Mich.  456;  Black- 
shire  V.  Atchison,  Topeka,  &  Santa 
Fe  Railroad  Co.,  13  Kan.  514;  Weyer 
V.  Milwaukee  &  Lake  Winneb.ago 
Railroad  Co.,  57  Wis.  329.  No  re- 
versal for  mere  irregularity.  Louis- 
ville, New  Albany,  &  Chicago  Railroad 
Co.  V.  Winderlick,  10  Am.  &  Eng. 
Railw.  Cas.  410.  Possession  pending 
appeal.  Central  Branch  Union  Pacific 
Railroad  Co.  v.  Atchison,  Topeka,  & 
Santa  Fe  Railroad  Co.,  28  Kan.  453: 
IVIettler  v.  Easton  &  Amboy  Railroad 
Co.,  25  N.  J.  Eq.  214. 

(»)  So  held  in  Warren  v.  St.  Paul 
&  Pacific  Railroad  Co,  21  Minn.  424; 
Lafayette,  INIuncie,  &  Bloomington 
Railroad  Co.  v.  Murdock,  68  Ind.  137; 


§73.] 


TUE   TIME   COMPENSATION   TO    BE   MADE. 


297 


* SECTION   XL 


Time  of  makhuj  Compensation. 


1,  2.  Compensation  must  prcceJe  posses- 
eion. 

8.  So  by  tlie  Code  Napoleon. 

4.  Thus  under  most  of  tlie  state  constitu- 
tions it  must  be  coneurrent  witii 
the  taking. 


5.  Otlierwise  by  the  English  cases. 
G.  Adequate  legal  remedy  sufficient  ? 

7.  Payment,  where  required,  is  requisite 

to  vest  the  title. 

8.  Some  states  liold  that  no  compensation 

is  requisite. 


§  73.  1.  In  general,  railway  acts  require  compensation  to  be 
made,  before  the  company  take  permanent  possession  of  the  land.* 
And  it  has  even  been  made  a  question,  in  this  country,  whether 
the  Icgishiture  could  give  a  railway  company  authority  to  take 
IKTmancnt  possession  of  lands,  required  for  their  use,  previous  to 
making  or  tendering  or  dc{)Ositing,  in  conformity  with  their 
charter  or  the  general  law,  com})cn.salion  for  the  same.^  (a) 

^  Lands  Clau.ses  Consolidation  Act,  8  Vict.  c.  IS,  §  81  et  acq.:  Ramsden  v. 
Manche.ster  &  South  Junction  &  Altrincham  Railway  Co.,  1  Exch.  723;  s.  c.  5 
Railw.  Cas.  552.  In  such  cases  courts  of  equity  will  enjoin  the  company  from 
taking  possession  until  compensation  is  made,  unless  the  owner  consent. 
Ross  r.  Elizabeth-Town  &  Sonierville  Railroad  Co.,  1  (ireen  Ch.  422. 

2  Thompson  v.  Grand  Gulf  Railroad  Co.,  3  How.  !Miss.  210.  The  consti- 
tution of  the  state,  however,  requires  a  previous  compensation  to  be  made. 
See  also  Cushman  v.  Smith,  34  Me.  247. 


Hampden  Paint  Co.  v.  Springfield, 
.\thol,  &  Northeastern  Railroad  Co., 
124  Mass.  118;  Logansport  Railway 
Co.  r.  Buchanan,  52  Lid.  1G8.  In 
Wisconsin,  however,  the  value  is  that 
of  the  date  of  apj^raisement.  Lyon 
I'.  Green  Ray  &  JNIinnesota  Railway 
Co.,  42  Wis.  538. 

hi  general,  interest  should  be  al- 
lowed from  the  date  of  the  award. 
Pigott  V.  Great  Western  Railway  Co., 
Law  Rep.  18  Ch.  140;  ]Mettler  v.  Eas- 
ton  &  Amboy  Railroad  Co.,  37  X.  J. 
Law,  222;  Drury  v.  Midland  Railroad 
Co.,  127  IMass.  571. 

So  on  appeal,  where  a  larger  sum 
is  awarded.  Warren  v.  St.  Paul  & 
Tacific  Railroad  Co.,  21  Minn.  424; 


Selma,  Rome,  &  Dalton  Railroad  Co. 
V.  Gammage,  G3  Ga.  G04;  Hartshorn 
r.  Burlington,  Cedar  Rapids,  &  North- 
ern Railway  Co.,  52  Iowa,  G13;  Sioux 
City  Railroad  Co.  v.  Brown,  13  Neb. 
317.  But  not  when  the  damages  are 
reduced.  Reisner  v.  Union  Depot  Co., 
27  Kan.  382.  See  Whitacre  v.  St.  Paul 
&  Sioux  City  Railroad  Co.,  24  Minn. 
311 ;  IMettler  v.  Easton  &  Amboy  Rail- 
road Co.,  37  N.  J.  Law,  222.  In  West 
r.  Milwaukee,  Lake  Shore,  &  A\'estern 
Railway  Co.,  5G  Wis.  318,  it  i.s  held 
that  on  appeal  damages  should  be 
assessed  as  of  the  date  of  the  taking, 
and  interest  added  from  that  time. 

(r?)   Under  the    constitution    pay- 
ment or  security  therefor  must  pre- 

[*280J 


298  EMINENT    DOMAIN.  [PART   III. 

2.  The  learned  and  sensible  author  of  the  Commentaries  on 
American  Law  ^  thus  states  the  rule  upon  this  subject :  "  The 
settled  and  fundamental  doctrine  is,  that  government  has  no  right 
to  take  private  property  for  public  purposes,  Avithout  giving  just 
compensation  ;  and  it  seems  to  be  necessarily  implied,  that  the 
indemnity  should,  in  cases  which  will  admit  of  it,  be  previously 
and  equitably  ascertained,  and  be  ready  for  reception,  concur- 
rently, in  point  of  time,  with  the  actual  exercise  of  the  right  of 
eminent  domain." 

3.  The  language  of  the  Code  Napoleon*  is  specific  upon  this 
point :  "  No  one  can  be  compelled  to  give  up  his  property  except 
*  for  the  public  good,  and  for  a  just  and  previous  indemnity."  A 
similar  provision  existed  in  the  Roman  civil  law, 

4.  It  is  embodied,  in  different  forms  of  language,  into  the  writ- 
ten constitutions  of  most  of  the  American  states,  but  not  generally 
in  terms  requiring  the  indemnity  concurrently  with  the  appropria- 
tion. But  practically  that  view  has  generally  prevailed  in  the 
courts.^ 

8  2  Kent  Com.  310,  393,  and  note.  Milwaukee  &  Mississippi  Railroad  Co. 
V.  Eble,  4  Chand.  72;  Cushman  v.  Smith,  34  Me.  247. 

4  CodeXap.,  B.  II.  tit.  II.  545. 

5  Lyon  V.  Jerome,  26  Wend.  485,  497 ;  Case  v.  Thompson,  6  Wend.  634, 
per  Sutherland,  J.  In  this  case  it  was  held,  that  it  was  not  indispensable 
to  the  opening  of  a  road  over  the  land  of  an  individual,  that  the  price  should 
be  paid  or  assessed  even,  before  the  opening  of  the  road.     And  iu  Bonaparte 

cede  possession.  Colgan  r.  Allegheny  jirohibition.  And  the  undertaking  of 
Valley  Railroad  Co.,  3  Pittsb.  394;  sureties  in  a  bond  to  answer  for  dam- 
New  Orleans  &  Sehna  Railroad  Co.  ages  is  not  just  compensation  within 
V.  Jones,  68  Ala  48.  And  see  Cham-  the  meaning  of  the  constitution.  Vil- 
bers  V.  Cincinnati  Railroad  Co.,  10  hac  v.  Stockton  &  Tone  Railroad  Co., 
Am.  &  Eng.  Railw.  Cas.  376;  Lee  v.  53  Cal.  208.  Full  compensation  must 
Northwestern  Union  Railway  Co.,  33  be  maile  in  money  paid  or  deposited. 
Wis.  222;  Jamaica  &  Brooklyn  Plank  St.  Jo.seph  and  Denver  Railroad  Co. 
Road  Co.  V.  New  York  &  Manhattan  v.  Callender,  13  Kan.  496.  And  it 
Beach  Railway  Co.,  25  Ilun,  585.  makes  no  difference  that  the  land- 
Hence  a  statute  authorizing  the  tak-  owner  has  appealed,  and  on  appeal 
ing  for  a  railroad  owned  by  the  state  recovered  judgment.  lb.  And  see 
of  land  to  be  paid  for  from  earnings,  Oregonian  Railway  Co.  v.  Hill,  9  Oreg. 
is  unconstitutional.  Connecticut  River  377;  .Sherman  v.  ^Milwaukee,  Lake 
Railroad  Co.  i>.  Fianklin  County  Com-  Shore,  &  Western  Railroad  Co.,  40 
missioners,  127  Mass.  50.  And  such  Wis.  645. 
taking  may  be  prevented  bv  writ  of 

[*281] 


§  73.]  TIME    OF    MAKING    COMPENSATION.  299 

*  5.  It  was  held  in  uuc  case,*'  where  the  act  of  jjarliament  gave 
the  right  to  taicc  lands  for  the  purpose  of  building  a  turnpikc- 

V.  Camden  &  Amboy  Railroad  Co.,  1  IJaldw.  20.j,  210,  it  was  held,  that  a  law 
tiiking  private  property  without  providing  for  compensation  was  not  void,  for 
it  was  said  that  compensation  might  be  provided  by  a  subsequent  law.  But 
the  appropriation  was  enjoined,  in  that  case,  till  compensation  should  be  made. 
See  also  Gardner  v.  Newburgh,  2  Jolins.  Ch.  162;  Henderson  v.  New  Orleans, 
r>  La.  41G;  Rogers  v.  Bradshaw,  20  Jolins.  TS-j;  Dl'NC.vn,  J.,  in  Eakin  v.  Raub, 
12  S.  &  R.  ;3.']U,  ;JOG,  372;  O'Hara  v.  Lexington  Railroad  Co.,  1  Dana,  232; 
Hamilton  v.  Annapolis  &  Elkridge  Railroad  Co.,  1  ]Md.  Ch.  107;  Ex  parte 
Martin,  13  Ark.  198.  In  Bloodgood  v.  Mohawk  &  Ilud.son  Railroad  Co.,  14 
Wend.  51,  it  is  held  that  this  constitutional  requirement  merely  contemplates 
a  legal  provision  for  compensation,  and  not  that  such  property  shall  be  actually 
paid  for  before  taken,  s.  c.  reversed,  18  Wend.  9;  .s.  c.  1  Redf.  Am.  Railw. 
Cas.  200.  In  Boynton  v.  Peterboro'  &  Shirley  Railroad  Co.,  4  Cush.  4G7, 
SliAW,  C.  J.,  says,  "  Tiie  right  to  damages  for  land  taken  for  public  use 
accrues  and  takes  effect  at  the  time  of  taking,  though  it  may  be  ascertained 
and  declared  afterwards.  That  time  in  the  case  of  railroads,  prima  facie,  and 
iu  the  absence  of  other  proof,  is  the  time  of  the  filing  of  the  location." 
Charlestown  Branch  Railroad  Co.  v.  Middlesex,  7  Met.  78;  s.  c.  1  Am.  Railw. 
Cas.  383;  Davidson  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  91. 

In  Massachusetts  the  remedy  is  limited  to  three  years  by  statute,  and  the 
time  begins  from  tiie  filing  of  the  location.  Charlestown  Branch  Railroad  Co. 
V.  Middlesex  County  Commissioners,  7  Met.  78;  s.  c.  1  Am.  Railw.  Cas.  383; 
Boston  &  Providence  Railroad  Co.  v.  jMidland  Railroad  Co.,  1  Gray,  340,  3G0; 
Drake  i'.  Hudson  River  Railroad  Co.,  7  Barb.  508,  552.  By  the  Xew  York 
statute  of  1851,  railway  companies  have  no  riglit  to  enter  upon,  occupy,  or 
cro.ss  a  turnpike  or  plunk  road  without  consent  of  the  owners,  except  on  condi- 
tion of  first  making  compensation.  Plank  Road  Co.  v.  Buffalo  Railroad  Co., 
20  Barb.  044. 

In  those  states,  where  the  constitutions  contain  express  provisions  requiring 
a  previous  compensation,  as  in  Pennsylvania,  Wisconsin,  Kentucky,  and  Mis- 
sissippi, the  decisions  would  not  be  much  of  an  indication  of  the  general  rule. 
But  .see  Ilarrisburg  v.  Crangle,  3  Watts  &  S.  400. 

In  some  of  the  states,  even  where  a  concurrent  right  to  compensation,  with 
the  appropriation  of  the  land,  is  recognized,  it  seems  to  be  considered  that  a 
statute,  authorizing  the  appropriation  of  land  for  public  uses,  but  making  no 
provision  for  compensation,  is  not  on  that  account  unconstitutional.  See  Rogers 
t».  Bradshaw,  20  Johns.  735. 

But  the  prevailing  opinion  even  in  New  York,  seems  to  be,  that  the  statute 


«  Lister  v.  Lobley,  7  A.  &  E.  124,  Lord  l)KN>t.\x  says:  "The  amount  of 
compensation  cannot  generally  be  ascertained  till  the  work  is  done.  The  effect 
of  the  words  in  question  is  that  they  shall  not  do  it  without  being  liable  to 
make  compensation."  It  seems  to  have  been  supposed  here,  that  if  the  com- 
pany did  not  make  compensation  it  might  be  compelled  to  do  so  by  mandamus. 

[*282]  • 


300  EMINENT    DOMAIN.  [PART   III. 

road,  *  making  or  tendering  satisfaction,  that  this  need  not  be 
done  before,  or  at  the  time  of  entering  upon  or  taking  the  lands. 

6.  But  this  subject  was  largely  discussed,  in  an  early  case  in 
New  York,'  and  finally  determined  by  the  court  of  errors  reversing 

should  provide  some  available  remedy  for  adequate  compensation,  and  that 
unless  that  is  done,  the  act,  if  not  positively  unconstitutional,  is  so  defective 
that  no  proceedings  should  be  suffered  under  it,  until  compensation  is  secured, 
and  that  a  court  of  equity  should  interfere.  Gardner  v.  Newburgh,  2  Johns. 
Ch.  162;  Rexford  v.  Knight,  11  N.  Y.  308;  Willyard  v.  Hamilton,  7  Ham. 
449,  Rubottom  v.  IVIcCluer,  4  Blackf.  505;  McCormick  v.  Lafayette,  Smith, 
Ind.  83 ;  Mercer  v.  Mc  Williams,  Wright,  132. 

Respecting  the  necessity  for  a  previously  ascertained  and  concurrently 
available  compensation,  some  cases  distinguish  cases  where  the  property  is  put 
to  the  use  of  the  state  directly,  and  hold  that  such  compensation  is  not  indis- 
pensable.    Young  i\  Harrison,  6  Ga.  130. 

The  grant  of  the  right  to  bridge  a  navigable  river,  or  arm  of  the  sea,  or  to 
obstruct  the  flow  and  reflow  of  the  tide  on  the  flats  of  private  persons,  although 
it  may  abridge  their  beneficial  use,  is  not  such  an  invasion  of  private  property 
as  to  entitle  the  party  to  compensation.  It  is  but  the  regulation  of  public 
rights,  and  if  private  persons  thereby  suffer  damage  it  is  damnum  absque  inju- 
ria. Davidson  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  91.  See,  also,  Zim- 
merman V.  Union  Canal  Co.,  1  Watts  &  S.  346;  Philadelphia  &  Reading 
Railroad  Co.  i'.  Yeiser,  8  Penn.  St.  3G6;  2  Am.  Raihv.  Cas.  325;  Common- 
wealth V.  Fisher,  1  Penn.  462;  supra,  §  63. 

But  it  is  very  generally  held,  that  in  the  absence  of  all  express  provision 
by  statute  in  regard  to  the  time  when  compensation  shall  be  made,  the  party 
is  at  all  events  entitled  to  have  it  ascertained  and  ready  for  his  acceptance, 
concurrently  with  the  actual  appropriation  of  the  estate  to  public  use,  and 
that  he  is  not  obliged  to  wait  till  the  work  is  completed.  People  v.  Hayden, 
6  Hill,  N.  Y.  359;  Baker  v.  Johnson,  2  Hill,  N.  Y.  342. 

But  in  most  of  the  states,  no  right  to  compensation  vests  in  the  land-owner 
till  the  acceptance  and  confirmation  of  the  appraisal  by  the  proper  tribunal, 
and  until  then,  the  company  may  change  the  location  of  the  road,  and  aban- 
don proceedings  pending  against  land-owners,  on  the  first  surveyed  route,  by 
paying  costs  already  assessed.  Hudson  River  Railroad  Co.  i'.  Cutwater,  3 
Sandf.  689. 

And  where  the  statute  provides  that  no  valuation  of  property  taken  for 
railway  and  canal  purposes  need  be  made  before  taking  possession  of  the 
same,  in  those  cases  where  the  property  is  not  obscured,  so  that  its  value  can- 
not be  judged  of,  there  should  be  no  unreasonable  delay  in  having  the  valu- 
ation made.     Compton  v.  Susquehanna  Railroad  Co.,  3  Bland,  386. 

^  Bloodgood  V.  Mohawk  &  Hudson  Railroad  Co.,  14  Wend.  51 ;  s.  c.  18  Wend. 
9,  59;  s.  c.  1  Redf.  Am.  Raihv.  Cas.  209.  See,  also,  on  this  subject,  Fletcher 
V.  Auburn  &  Syracuse  Railroad  Co.,  25  Wend.  462;  Smith  v.  Helmer,  7  Barb. 
416;  Pittsburgh  v.  Scott,  1  Penn.  St.  309;  Peoples.  Michigan  Southern  Rail- 
road Co.,  3  Gibbs,  496.  In  this  case  it  is  said  the  party  who  makes  no  appli- 
[*283] 


73.]  TIME   OF    MAKING    COMPENSATION.  oOl 

•  the  judgment  of  the  court  below,  that  if  provision  was  made  for 
compensation  in  the  act  giving  power  to  take  tlie  lands,  it  was  not 

cation  for  compensation  for  many  years  should  be  regarded  as  having  waived 
all  claim.  lb.  50G.  See,  also,  Smith  v.  McAdam,  3  Gibbs,  500.  A  statu- 
tory provision  for  a  deposit  of  the  value  of  the  land  before  entry,  is  a  provision 
for  the  security  of  the  land-owner,  and  may  be  waived;  and  if  entry  is  made 
without  making  the  deposit,  the  owner  may  recover  the  assessment  in  an 
aciiun  of  debt.  Smart  v.  liailroad  Co.,  20  X.  II.  233.  But  in  one  case  it 
was  held  indispen.sable  to  the  validity  of  the  power,  that  the  party,  who.se 
land  was  taken,  should  have  something  more  than  a  right  of  action  for  the 
value  of  his  land.  Shepardson  v.  Milwaukee  &  Beloit  Railroad  Co.,  0  Wis. 
605.  See  Powers  v.  Bears,  12  Wis.  213;  Ford  v.  Chicago  &  Xorthwestern 
Railway  Co.,  14  Wis.  009. 

By  the  construction  of  the  statute  of  Maine,  a  railway  corporation,  as  soon 
as  the  track  is  located,  may  take  immediate  possession,  and  the  land-owner, 
failing  to  agree  with  the  company  as  to  the  amount  of  damages,  may  apply  to 
the  courts  to  have  the  same  assessed,  and  thereupon  the  company  must  pay  or 
give  security  for  the  same,  and  right  of  possession  is  suspended  until  the  re- 
quirement is  complied  with;  but  no  action  of  trespass  lies  in  such  ca.ses. 
Davis  r.  Russell,  47  ^le.  443.  Where  by  statute  a  bond  is  required  to  be  filed 
by  the  company  to  secure  damages  to  the  land-owner,  on  failure  of  the  parties 
to  agree  on  the  amount,  such  bond  extends  to  all  the  lawful  damage  caused  to 
the  owner  by  the  construction  of  the  company's  works;  and  the  fact  of  its  be- 
ing .approved  and  ordered  to  be  filed  is  presumptive  proof  that  the  parties  liad 
failed  to  agree.  A\'adhams  v.  Lackawanna  &  Bloomsburg  Railroad  Co.,  42 
Penn.  St.  303. 

But  in  most  of  the  states  the  assessment  of  the  damages  due  to  the  land- 
owner, and  the  payment,  tender,  or  deposit  of  the  same,  is  held  a  condition 
precedent  to  the  right  of  entry,  and  the  company  entering  before  compliance 
therewith  will,  prima  facie,  be  regarded  as  trespassers.  Memphis  &  Charleston 
Railroad  Co.  v.  Payne,  37  Miss.  700;  Henry  v.  Dubuque  &  Pacific  Railroad  Co., 
10  Iowa,  510;  Evans  r.  Ilaefner,  2!)  Mo.  141;  Burns  c.  Dodge,  9  Wis.  4.")S. 

In  McAulay  v.  Western  Vermont  Railroad  Co.,  33  Vt.  311;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  245, 'it  was  decided  that  the  payment  of  land  damages  was 
a  condition  precedent  to  the  acquiring  of  title ;  but  that  where  the  land-owner 
acquiesces  in  occupation  without  prepayment  on  a  contract  or  understanding 
for  future  payment,  and  the  road  is  constructed  and  put  in  operation,  he  can- 
not afterwards,  on  failure  to  obtain  payment,  maintain  trespass  or  ejectment 
for  the  land.  And  whether,  under  such  circumstances,  he  would  still  retain 
an  equitable  lien  on  the  land,  seems  doubtful.  The  mere  prosecution  of  a 
controversy  before  commissioners  or  on  appeal,  as  to  the  amount  of  the  dam- 
ages, is  not  such  a  prohibition  of  the  taking  of  the  land  without  prepayment 
as  is  necessary  to  enable  the  owner  to  maintain  trespass  or  ejectment  after  the 
road  is  put  in  operation.  Nor  will  notice  to  the  laborers  on  the  railway  em- 
ployed by  the  contractor  be  considered  as  sufficient  to  entitle  the  owner  to 
maintain  trespass  or  ejectment  against  the  company,  the  corapanv  "ot  being 

[*284] 


302  EMINENT    DOMAIN.  [PAUT    III. 

indispensable  that  the  amount  should  be  actually  ascertained  and 
paid  bcfure  the  appropriation  of  the  j)roperty. 

7.  In  Mississippi  it  is  required,  by  the  constitution  of  the  state, 
that  the  compensation  be  paid  before  the  right  to  use  the  land  is 
vested.^  So  also  in  Georgia  the  title  does  not  vest  in  the  company 
until  the  ascertained  compensation  is  paid  or  tendered.^  (/>)     A 

affected  by  such  notice.  In  Dayton  Railroad  Co.  v.  Lawton,  20  Ohio  St.  401, 
where  the  defendant  agreed  to  convey  the  right  of  way  through  on  payment  of 
the  agreed  price,  and  tlie  company  entered  before  payment,  it  was  held  that 
the  landowner  had  a  lien  on  the  Land  for  the  unpaid  purchase-money,  which 
could  be  enforced  by  the  sale  of  the  whole  road.  In  Jersey  v.  Briton  Ferry 
Floating  Dock  Co.,  Law  Rep.  7  Eq.  409,  it  was  held  that  the  owner,  after  the 
construction  of  the  works,  had  no  lien  on  the  lands  for  payment  of  a  rent-charge. 
WiCKENS,  Vice  Chancellor,  said  the  enforcement  of  such  a  lien  by  entry  oa 
the  land  would  be  contrary  to  any  probable  intention  of  the  parties.  But  in 
Winchester  i'.  Mid-Hants  Railway  Co.,  Law  Rep.  5  Eq.  17,  the  court  held 
that  where  railway  companies  had  been  allowed  to  build  across  lands  on 
promise  of  payment  of  agreed  damages  in  six  months  after  the  completion  of 
the  works,  the  vendor's  lien  might  be  enforced  against  the  companies  by  ap- 
pointing a  receiver,  or  in  any  other  proper  manner.  See,  also,  Munns  v.  Isle 
of  Wight  Railway  Co.,  Law  Rep.  8  Eq.  653,  where  the  Vice-Chancellor  said 
the  land-owner,  after  having  obtained  a  decree  for  payment  of  land  damages, 
had  the  right  to  say  to  the  company,  "  pay  me  the  purchase-money  or  give  ine 
back  my  property." 

8  Stewart  v.  Raymond  Railroad  Co.,  7  Sm.  &  M.  568.  See  also  Thompson 
r.  (irand  Gulf  Railroad  Co.,  3  How.  Miss.  240. 

3   Doe  V.  Georgia  Railroad  Banking  Co.,  1  Kell}-,  524. 

(Ji)  So  in  Indiana  under  the  consti-  of  compensation.  Redman  v.  Phila- 
tution  of  18.")6.  And  thence  it  follows  delphia,  Marlton,  &  Medford  Railroad 
that  it  is  the  duty  of  the  company  Co.,  33  N.  J.  Eq.  165.  So  of  a  statute 
to  commence  the  proceedings  for  the  authorizing  entry  upon  tender  pending 
as.sessment  of  damages.  Cox  y.  Louis-  appeal,  without  awaiting  the  issue, 
ville.  New  Albany,  &  Chicago  Rail-  Watson  v.  Pittsburg  &  Connellsville 
road  Co.,  48  Ind.  178.  But  see  iufm,  Railroad  Co.,  2  Pittsb.  99.  And  a  stat- 
§  96,  note  (a).  So  payment  is  a  con-  utory  provision  to  enable  the  court  to 
dition  precedent  under  the  constitution  permit  the  company  to  take  possession 
of  Kansas;  and  a  judgment  unpaid  pending  proceedings  to  condemn,  with- 
and  unsecured  will  not  suffice.  Pryz-  out  providing  compensation  for  use 
bylowicz  v.  Missouri  River  Railroad  and  waste,  is  also  unconstitutional. 
Co.,  3  iMcCrary,  586.  A  statute  per-  Davis  i\  San  Lorenzo  Railroad  Co., 
mitting  entry  on  payment  pending  ap-  47  Cal.  517;  California  Pacific  Rail- 
peal  of  the  amount  awarded  into  the  road  Co.  v.  Central  Pacific  Railroad 
court  of  the  county  where  the  land  lay,  Co.,  47  Cal.  528.  But  in  New  Jersey, 
was  held  unconstitutional,  as  not  re-  under  the  act  of  1873,  the  company 
quiring  precelent  payment  or  tender  may  take  possession  pending  an  ap- 
[*284] 


§  73.]  TIME    OF    MAKING    COMPENSATION.  303 

.similar  decision  was  made  by  the  .Supreme  Court  of  the  United 
States,^^  where  the  charter  of  the  company  provided  that  the  pay- 
ment, or  tender,  of  the  valuation  should  vest  the  estate  in  the 
company,  as  *  fully  as  if  it  had  been  conveyed.  And  a  similar 
decision  was  also  made  by  the  Supreme  Court  of  Vermont. ^^ 

8.  In  one  case  in  North  Carolina,!^  it  was  held  that  compensa- 
tion need  not  be  made  prior  to  appropriatint^-  land  for  public  use. 
riie  constitution  of  the  state  is  said  to  contain  no  prohibition 
against  taking  private  property  for  public  use,  without  compensa- 
tion. And  the  same  is  true  of  the  constitution  of  South  Carolina. 
And  the  latter  state  held  ^^  that  private  property  might  be  taken 
without  compensation.  But  this  decision  is  certainly  at  variance 
with  the  generally  received  notions  upon  that  subject,  since  the 
jicriod  of  the  Roman  Empire. 

^"  Baltimore  &  Susquehanna  Railroad  Co.  v.  Nesbit,  10  ITow.  395. 

"  Stacey  v.  Vermont  Central  Railroad  Co.,  27  Vt.  39.  The  opinion  of  Isiiam, 
J.,  in  this  case,  shows  the  correlative  rights  of  the  company  and  landowner, 
and  by  what  act  the  right  of  each  becomes  perfected.  Where  the  statute  re- 
quires the  company  to  contract  in  writing,  it  is  not  competent  to  show  title  in 
any  other  mode,  unless  by  formal  conveyance.  Ilarborough  v.  Shardlow,  2 
Kailw.  Cas.  253;  s.  c.  7  M.  &  W.  ST.  In  Graff  v.  Baltimore,  10  Md.  514,  it  was 
held,  under  a  statute  to  enable  the  city  to  supply  pure  water,  and  to  take  land 
on  valuation  by  a  jury  and  compensation  to  the  owners,  which  provided  tiiat 
where  "such  valuation  is  paid,  or  tendered,  to  the  owner  or  owners"  of  the 
property,  it  "  shall  entitle  the  city  to  the  use,  estate,  and  interest  in  the  same, 
thus  valued,  as  fully  as  if  it  had  been  conveyed  by  the  owners; "  that  the  city 
was  not  bound  by  the  mere  inquisition  and  judgment  thereon,  but  could  right- 
fully abandon  the  location ;  and  that  payment,  or  tender,  under  the  statute,  was 
indispensal)le  to  the  vesting  of  the  title.  But  it  was  held,  that  the  city  might 
be  made  liable,  in  another  form  of  proceeding,  to  the  land-owner,  for  any  loss 
or  (hiinage  he  might  have  sustained,  by  reason  of  the  conduct  of  the  municipal 
authority  in  the  premises. 

'•-  Raicigh  &  Gaston  Railroad  Co.  v.  Davis,  2  Dev.  &  Bat.  151.  But  in  New 
Jersey  it  was  held  that  the  supervisors,  in  laying  out  roads,  were  bound  to  award 
damages  to  land-owners,  with  their  return,  and  that  if  they  did  not  the  whole 
proceeding  would  be  illegal  and  void.     State  v.  Garretson,  3  Zab.  388. 

''  State  V.  Dawson,  3  Hill  S.  C.  100.  In  this  case  Mr.  Justice  Riciiardsox 
dissents  from  tlie  decision  of  the  court,  and  it  is  generally  allowed  that  his 
opinion  states  the  law.  See  2  Kent  Com.  339,  note  (/).  See  Louisville  Rail- 
road Co.  V.  Chappcll,  1  Rice,  383;  Lindsay  i\  Commissioners,  2  Bay,  38. 

peal  on  payment  or  tender  pursuant  road  &  Coal  Co.,  68  111.  2SG,  where  it 
to  the  act.  fiercer  &  Somerset  Rail-  is  held  that  possession  may  be  taken 
way  Co.  26  X.  J.  Eq.  464.  And  see  pending  appeal,  under  the  act  of  1852, 
Mitchell  V.  Illinois  &  St.  Louis  Rail-     on  giving  of  a  bond. 

[*2S51 


804 


EMINENT   DOMAIN. 


[part   III, 


*SECTION  XII. 


Appraisal  includes  Consequential  Damages. 


1.  Appraisal  bars  claim  for  consequential 

damage. 

2.  Damage,  for  instance,  by  blasting  rock. 

3.  But  not  damage  by  tiie  unnecessary 

using  of  other  land. 

4.  Loss  by  fires,  obstruction  of  access,  and 

cutting  off  of  springs,  barred. 

5.  But  not  loss  by  flowing  land. 


Damages,   from    not   building  on   the 

plan  conteniplated,  are  barred. 
Special  statutory  remedies  reach  sucli 

damages. 
Exposure  of  land  to  fires  not  to  be 

considered. 
No  action  lies  for  damage  sustained  by 

the  use  of  a  railway. 


§  74.  1.  It  is  requisite  that  tlie  tribunal  appraising  land  dam- 
ages for  lands  condemned  for  railways,  should  take  into  consid- 
eration all  such  incidental  loss,  inconvenience,  and  damage,  as  may 
reasonably  be  expected  to  result  from  the  construction  and  use  of 
the  road,  in  a  legal  and  proper  manner.  And  as  all  tribunals,  hav- 
ing jurisdiction  of  any  particular  subject-matter,  are  presumed  to 
take  into  consideration  all  the  elements  legally  constituting  their 
judgments,  such  incidental  loss  and  damage  will  be  barred  by  the 
appraisal,  whether  in  fact  included  in  the  estimate  or  not.  (a) 


(rt)  Consequential  damages  caused 
by  acts  duly  authorized,  necessary 
to  the  exercise  of  the  franchise,  and 
performed  with  due  care  and  skill,  are 
not  to  be  considered,  although  they 
lessen  the  value  of  property, —  damages 
e.g.,  from  noise,  smoke,  cinders,  &c. 
Cogswell  V.  Xew  York,  New  Haven,  & 
Hartford  Railroad  Co.,  48  N.  T.  31. 

The  inconvenience  resulting  from 
the  division  of  a  farm,  separation  of 
wood  or  water  from  the  rest  of  the 
farm,  &c.,  is  matter  for  compensation. 
Chicago  &  Iowa  Railroad  Co.  v.  Hop- 
kins, 90  111.  316;  Hartshorn  r.  Bur- 
lington, Cedar  Rapids,  &  Xorthern 
Railway  Co.,  52  Iowa,  G13;  Bourn  v. 
Atlantic  Railroad  Co.,  17  S.  C.  574; 
Tucker  v.  ]Massachusetts  Central  Rail- 
road Co.,  118  !Mass.  546;  Peoria, 
Atlanta,  &  Decatur  Railroad  Co.  v. 
Sawyer,  71  111.  361;  Parks  v.  Wis- 
[*286J 


cousin  Central  Railroad  Co.,  33  Wis. 
413.  So  is  the  inconvenience  of 
having  one's  land  temporarily  throwa 
open  while  construction  of  the  road  is 
going  on.  St.  Louis,  Jersey ville,  & 
Springfield  Railroad  Co.  v.  Kirby,  104 
111.  345.  So  is  damage  from  mere  sev- 
erance. Galena  &  Southern  Wiscon- 
sin Railroad  Co.  v.  Birkbeck,  70  III. 
208;  St.  Louis,  Arkansas,  &  Texas 
Railroad  Co.  r.  Anderson,  39  Ark.  167; 
McReynolds  r.  Baltimore  &  Ohio  Rail- 
way Co.,  106  111.  152;  Old  Colony 
Railroad  Co.  v.  Miller,  125  Mass.  1; 
Harrison  v.  Iowa  Midland  Railroad 
Co.,  36  Iowa,  323.  So  is  damage  to 
growing  crops.  Lance  v.  Chicago, 
Milwaukee,  &  St.  Paul  Railroad  Co., 
57  Iowa,  636.  Or  to  an  orchard. 
Selma,  Rome,  &  Dalton  Railroad  Co. 
V.  Redwine,  51  Ga.  470.  So  is  dam- 
age resulting  from  interference  with 


§  74.]  APPRAISAL  INCLUDES    CONSEQUENTIAL    DAMAGES.  305 

2.  Ilcncc  damage  done  by  the  contractors  to  the  remaining 
liiml,  by  blasting  rocks,  in  the  course  of  construction,  has  been 
held  to  be  barred,  as  included  in  the  estimated  compensation  for 
the  land  taken. ^ 

'  Dodge  I'.  County  Commissioners,  3  Met.  380;  8.  c  1  Redf.  Am.  Railw. 
Cas.  279;  Sabin  v.  Vermont  Central  Railroad  Co.,  25  Vt.  3G3 ;  8.  c.  1  Redf. 
Am.  Railw.  Cas.  282;  Dearborn  v.  Boston,  Concord,  &  ^lontrcal  Railroad  Co  , 
4  Fost.  N.  II.  171>,  187;  Whiteliouse  v.  Androscoggin  Railroad  Co.,  52  Me. 
208.  But  in  Hay  v.  Cohoes  Co.,  2  Comst.  159,  a  company  dug  a  canal  on  it.s 
own  land,  for  the  purposes  authorized  by  the  charter.  In  .so  doing,  it  was 
necessary  to  blast  rocks,  and  the  fragments  were  thrown  against  and  injured 
the  plaintiff's  dwelling,  on  land  adjoining,  and  it  was  held  that  tlie  company 
was  liable  to  a  special  action  for  the  injury,  althougii  no  negligence  or  want 
of  skill  was  alleged  or  proved;  and  in  Tremain  r.  Cohoes  Co.,  2  Comst.  1G3,  a 
precisely  similar  action,  it  was  held  that  evidence  to  show  tl.at  the  work  was 
done  in  the  most  careful  manner  was  inadmissible,  there  being  no  claim  for 
exemplary  damages.  But  there  is  probably  an  essential  difference  between  the 
case  of  a  railway  in  the  construction  of  which  blasting  rocks  is  almost  indis- 
pensable, and  that  of  a  manufacturing  company,  or  other  proprietor,  who  may 
find  it  convenient  to  blast  rocks  on  his  premises,  to  increase  their  utility  or 
beauty.  But  for  doing  what  the  act  does  not  authorize,  or  doing  improperly 
what  it  does  authorize,  a  railway  company  is  liable  to  an  action.  Turner  v. 
Sheffield  &  Rotherham  Railroad  Co.,  10  U.  &  W.  425.  In  Carman  r.  Steuben- 
ville  &  Indiana  Railroad  Co.,  4  Ohio  St.  399,  it  seems  to  be  taken  for  granted, 
tliat  throwing  fragments  of  rock,  by  blasting,  on  the  land  of  adjoining  pro- 
prietors, is  an  actionable  injury. 

Tlie  result  of  the  cases  would  seem  to  be,  that  where  the  damage  done  by 
blasting  rocks,  or  the  like,  in  the  construction  of  a  railway,  is  damage  to  land, 
a  portion  of  which  is  taken  by  the  company  under  Compulsory  powers,  it  will 
not  lay  the  foundation  of  an  action  iu  any  form,  as  it  should  be  taken  into 
account  in  estimating  the  compensation  to  the  land-ownor  for  the  land  taken. 
Brown  i>.  Provinence,  Warren,  &  Bristol  Railroad  Co.,  5  Gray,  3.').  And  if  not 
included  in  the  appraisal,  it  is  nevertheless  barred.  Dodge  r.  County  Commis- 
sioners, supra.  But  if  the  damage  is  to  land,  no  part  of  which  is  taken,  and 
where  no  land  of  the  same  owner  is  taken,  it  may  be  recovered,  under  the  stat- 

the  flow  of  surface  water.     Pflegar  v.  Augusta  Railroad  Co.  r.  Wicker.  71 

Hastings  &  Dakota  Railway  Co.,  28  N.  C    220;  Penn.sylvania  &  New  York 

Minn,  510;     Hardman   r.  Northeast-  Railroad  Co.  v.  Bunnell,  81  Penn.  St. 

ern  Railway  Co.,  Law  Rep.  3  C.  P.  414;  Leavenworth,  Topcka,  &  South- 

168.     So   is   damage   by   way   of   in-  western  Railroad  Co.  r.  Paul,  28  Kan. 

creased  difficulty   in    renting.     Pitts-  81G;  Baltimore,  Pittsburg,  &  Chicago 

burg,  Virginia,  &  Charleston  Railroad  Railroad  Co.  v-  Lansing,  52  Ind.  229; 

Co.  V.  Rose,  74  Penn.  St.  302.     The  New  York  &  Greenwood  Lake  Railway 

necessity  for  additional  fences  is  also  Co.  v.  Stanley,  35  N.  J.  Kcj.  283. 
an  element    of   damage.     Raleigh    & 

VOL.  1.-20  [*286] 


306  EMINENT   DOMAIN.  [PART   III. 

*  3.  But  it  was  held  that  this  did  not  preclude  the  land-owner 
from  recovering  damages  for  using  land  adjoining  the  land  taken 
*  for  a  cart-way,  where  six  rods  were  allowed  to  be  taken  by  the 
company  throughout  the  line  of  the  road,  which  would  give  ample 
space  for  cart-ways  upon  the  land  taken.^  But  it  was  held,  in 
another  case,  that  the  company  were  not  liable  for  entering  upon 
the  adjoining  lands,  and  occupying  the  same  with  temporary  dwell- 
ings, stables,  and  blacksmith  shops,  provided  no  more  was  taken 
than  was  necessary  for  that  purpose.^ 

4.  So  it  is  settled  that  the  appraisal  of  land  damages  is  a  bar  to 
claims  for  injuries  by  fire,  from  the  engines  obstructing  access  to 
buildings,  exposing  persons  or  cattle  to  injury,  and  many  such 
risks.*  (i)    And  it  will  make  no  difference,  that  the  damages  were 

«te,  if  provision  is  made  for  giving  compensation  for  consequential  damage, 
or  where  lands  are  "  injuriously  affected."  But  if  the  statute  contain  no  such 
provision,  the  only  remedy  will  be  by  a  general  action.  And  in  this  view  many 
of  the  cases  cited  above  seem  to  assume,  that  blasting  rocks,  by  an  ordinary  pro- 
prietor of  land,  is  a  nuisance  to  adjoining  proprietors  if  so  conducted  as  to  do 
them  serious  damage.  And  this  is  the  ground  on  which  the  case  of  Carman  v. 
Steubenville  &  Indiana  Ilaih'oad  Co.,  is  decided,  without  much  examination  of 
this  point,  indeed,  and  by  a  divided  court.  But  if  a  railway  is  not  liable  for 
necessary  consequential  damage,  unless  the  statute  gives  a  remedy  {infra,  §  75), 
it  may  perhaps  be  questioned  how  far  a  recovery  could  be  maintained,  in  a  gen- 
eral action  for  damage  done  by  blasting  rocks,  as  that  is  confessedly  within 
the  range  of  their  powers.  See  Dodge  v.  County  Commissioners,  3  Met.  380, 
per  SiiAW,  C.  J.,  where  it  is  said  that  an  "authority  to  construct  any  pub- 
lic work  carries  witli  it  an  authority  to  use  the  appropriate  means."  See 
also  Pottstown  Gas  Co.  v.  Murphy,  39  Penn.  St.  257;  Whitehouse  v.  Andros- 
coggin Railroad  Co.,  52  Me.  208.  In  the  latter  case  it  was  held  that  the  dam- 
age resulting  to  the  land-owner,  for  not  removing  the  stone  thrown  upon  land 
adjoining  that  taken,  could  not  be  considered  in  estimating  damages,  since  it 
was  presumable  that  the  company  would  remove  them  in  proper  time,  accord- 
ing to  its  duty;  and,  if  it  did  not,  the  remedy  would  be  by  special  action. 

2  Sabin  v.  Vermont  Central  Railroad  Co.,  25  Vt.  3G3 ;  s.  c  1  Redf.  Am. 
Railw.  Cas.  282;  Eaton  v.  European  &  North  American  Railway  Co.,  59 
Me.  520. 

2  Lauderbrun  v.  Duffy,  2  Penn.  St.  398.  But  it  seems  questionable 
whether  the  rule  laid  down  here  can  be  maintained.  If,  however,  a  party  is 
entitled  to  compensation  for  injuries  of  this  kind,  as  where  his  lands  adjoining 
a  railway  are  injuriously  affected,  as  by  blasting  rocks,  his  only  remedy  is 
under  the  statute.     Dodge  v.  County  Commissioners,  3  ^let.  380. 

*  Philadelphia  &  Reading  Railroad  Co.  v.  Yeiser,  8  Penn.  St.  366;  but 

(b)  As  to  damage  by  interference  way  public  or  private,  see  Caledonian 
with  the   means  of  access  through  a     Railway  Co.  v.  AValker,  Law  Rep.  7 

[*287,  *288] 


§  74.]  APPRAISAL   INCLUDES    CONSEQUENTIAL    DAMAGES.  307 

not  known  to  the  appraisers,  or  capable  of  anticipation  at  the 
time  of  assessing  land  damages;^  as  where  a  spring  of  water  is 
cut  off  by  an  excavation  for  the  bed  of  a  railway  fifteen  feet  below 
(he  surface,  from  which  the  plaintiff's  buildings  had  been  supplied 
with  water. 

*  5.  But  it  was  held,  that  where,  in  the  construction  of  a  canal, 
with  waste  weirs,  erected  by  direction  and  under  the  inspection 
of  the  commissioners  appointed  to  designate  the  route  of  the 
canal,  with  all  the  works  connected  therewith,  and  to  appraise 
damages,  the  waste  water,  after  flowing  over  the  land  of  adjoining 
proprietors,  flowed  upon  the  land  of  the  plaintiff,  and  thereby 
greatly  injured   it,  that   he   w^as   entitled   to  recover  damages.* 

this  is  regarded  as  overruled  by  Lehigh  Valley  Railway  Co.  v.  Lazarus,  28 
Peiin.  St.  2(13;  s.  c.  2  Am.  Raihv.  Cas.  325;  Aldrich  v.  Cheshire  Railroad  Co., 
1  Fost.  N.  IL,  S.JQ;  s.  c.  1  Am.  Raihv.  Cas.  200;  ftLason  i'.  Kennebec  &  Tort- 
land  Railroad  Co.,  31  ^le.  215.  See  also  Fiuniss  r.  Hudson  River  Railway 
Co.,  5  Sandf.  551 ;  Huyett  v.  Philadelphia  &  Reading  Railroad  Co.,  23  Penn. 
St.  373;  supra,  §§  71,  72.  See  also  Lafayette  Plank-Road  Co.  v.  New  Albany 
Railroad  Co.,  13  Ind.  00.  The  land-owner  can  claim  no  additional  damages 
because  the  company  moves  its  track  in  the  street  nearer  to  the  land  than  it 
was  at  first  laid.     Snyder  r.  Pennsylvania  Railroad  Co.,  55  Penn.  St.  310. 

*  Aldrich  r.  Cheshire  Railroad  Co.,  1  Fost.  N.  H.  350.  But  see  Lawrence 
f.  Great  Northern  Railway  Co.,  IG  Q.  B.  G43  ;  s.  c.  4  Eng.  L.  &  Eq.  2G5. 
So,  also,  where  the  company's  works  cut  off  a  spring  of  water  below  high- 
water  mark,  on  a  navigable  river,  the  riparian  owner  is  entitled  to  damages 
on  that  account,  in  a  proceeding  under  tiie  statute.  Lohigh  Valley  Railroad 
Co.  r.  Trone,  28  Penn.  St.  206. 

*  Hooker  v.  New  Haven  &  Northampton  Co.,  14  Conn.  140;  s.  c.  15 
Conn.  312.  But  in  such  case,  the  owner  of  property  overflowed  by  water, 
through  the  defective  construction  of  a  railway,  is  bound  to  use  reasonable 
care,  skill,  and  diligence,  adapted  to  the  occasion,  to  arrest  the  injury;  and  if 
he  do  not,  notwithstanding  the  first  fault  was  on  the  part  of  the  company,  he 
must  bo  regarded  as  himself  the  cause  of  all  damage,  which  he  might  have 
prevented  by  the  use  of  such  care,  diligence,  and  .skill.  Chase  v.  New  York 
Central  Railroad  Co.,  24  Barb.  273.  See  Lemraex  v.  Vermont  Central  Rail- 
road Co.     See  also  infra,  §  191. 

The  assessment  of  compensation  for  land  taken  for  a  railway  covers  all  dam- 
ages, whether  foreseen  or  not,  and  whether  actually  estimated  or  not,  which 
result  from  the  proper  construction  of  the  road.  P>nt  the  company  is  liable  to 
an  action  for  damages  resulting  to  any  one  from  the  defective  construction  of 

Ap.   Cas.    259.      As  to    damage    by     water,  see  Drury  v.  Midland  Railroad 
interference  with  the  means  of  access     Co.,  127  Mass.  571. 
to  a  portion   of  a  flat  through  tide- 

[*289] 


308  EMINENT   DOMAIN.  [PART   III. 

But  the  occasional  flow  of  land  by  water,  caused  by  public  works, 
is  to  be  estimated  as  part  of  the  damages  under  the  English 
statute." 

6.  And  where  the  appraisal  of  land  damages  is  reduced  below 
what  it  otherwise  would  have  been,  by  the  representations  of  the 
agents  of  the  company  that  the  road  would  be  constructed  in  a 
particular  manner,  made  at  the  time  of  the  appraisal  to  the  com- 
missioners, *  and  which  representations  are  not  fulfilled  in  the 
actual  construction  of  the  road,  whereby  the  plaintiff  sustained 
serious  loss  and  injury,  it  was  held,  that  the  adjudication  of  the 
commissioners  was  a  merger  of  all  previous  negotiations  upon  the 
subject,  and  that  no  action  could  be  maintained  for  constructing 
the  railway  contrary  to  such  representations,  provided  it  was  done 
in  a  prudent  and  proper  manner.^ 

7.  But  where  no  part  of  the  plaintiff's  land  is  taken,  and  the 
statute  gives  all  parties  suffering  damage  by  the  construction  of 
railways  the  right  to  recover,  as  in  England  and  some  of  the 
American  states,  and  the  water  is  drawn  off  from  plaintiff's  well 
upon  lands  adjoining  the  railway,  he  may  recover.^     So,  too,  may 

the  road,  tbe  want,  e.  g.,  of  suitable  bridges  and  culverts  to  convey  the  water 
across  the  railway,  at  or  near  the  places  where  it  naturally  flows  (such  being 
necessary  to  the  proper  construction  of  the  road),  except  where  they  cannot  be 
made,  or  where  the  expense  of  making  them  is  greatly  disproportionate  to 
the  interests  to  be  preserved  by  them.  Johnson  v.  Atlantic  &  St.  Lawrence 
Railroad  Co.,  3-5  X.  H.  5G9. 

T  Ware  v.  Regent's  Canal  Co.,  3  De  G.  &  J.  212. 

8  Butman  v.  Vermont  Central  Railroad  Co.,  27  Vt.  500.  See  also  Rail- 
road Co.  !'.  Washington,  1  Rob.  67;  Baltimore  &  Susquehanna  Railroad  Co.  v. 
Compton,  2  Gill,  20,  28;  supra,  §  71;  Kyle  v.  Auburn  &  Rochester  Railroad, 
2  Barb.  Ch.  489.  But  see  Wheeler  v.  Rochester  &  Syracuse  Railroad  Co.,  12 
Barb.  227,  where  it  is  held  that  a  railway  company  will  be  enjoined  from 
building  a  road-crossing  at  a  different  place  from  that  named  at  the  time  dam- 
ages were  assessed.  But  it  has  been  held  that  the  company  may  show,  by 
experts,  the  necessity  of  putting  a  culvert  through  an  embankment,  at  a  par- 
ticular point,  in  order  to  preserve  the  work,  as  an  answer  to  a  claim  for  dam- 
ages on  account  of  the  prospective  obstruction  of  the  water,  and  setting  it 
back  upon  the  land  at  that  point.  But  it  should  be  shown  that  such  culvert 
is  absolutely  indispensable,  before  any  deduction  can  be  made  on  that  account, 
unless  the  company  is  in  some  legal  way  bound  to  make  it.  The  company  is 
not  estopped  from  proving  this  necessity  because  the  plat  of  the  location  of 
the  road  does  not  indicate  a  culvert  at  that  point.  Nason  v.  Woonsocket 
Union  Railroad  Co.,  4  R.  I.  377;  infra,  §  93. 

9  Parker  v.  Boston  &  Maine  Railroad  Co.,  3  Cu.sh.  107. 

[*290] 


§  74.]  APPRAISAL   INCLUDES   CONSEQUKNTIAL    DAMAGES.  309 

the  proprietor  of  a  mill-pond  recover  damafrcs,  sustained  by  the 
const  ruction  of  a  railway  across  the  same,  although  the  dam  was 
authorized  by  the  legislature,  upon  a  navigable  river;  and  in  con- 
structing it,  the  conditions  of  the  act  were  not  complied  with.^** 

8.  But  it  has  been  held  that  the  appraisers  are  not  to  estimate 
increased  damages  to  a  land-owner  in  consequence  of  the  ex()o- 
sure  of  the  remaining  land  to  lires  by  the  company's  engines.'^  (c) 

10  White  V.  South  Shore  Raih-oad  Co.,  G  Cush.  412. 

"  Suiibury  &  Erie  llaihoad  Co.  t;.  Hummel,  27  Penn.  St.  99,  Lewis,  C.  J., 
and  Black,  J.,  dissenting.  The  general  current  of  authority  seems  to  be  with 
the  minority  of  the  court.  It  has  been  held  that  the  appraisers  of  lands 
are  to  consider,  in  estimating  the  damage  done  to  the  owner,  the  depreciation 
in  value  to  his  estate  caused  by  the  proximity  of  the  railway,  so  far  as  it  is 
brought  about  solely  by  rea.son  of  taking  the  land.  Walker  v.  Old  Colony  & 
Newport  Railway  Co.,  103  Mass.  10.  And  the  turning  of  surface  water  by 
reason  of  a  railway  embankment  is  also  to  be  considered  in  estimating  the 
damages  to  the  owner  of  the  estate.  lb.  See  also  Presbrey  v.  Old  Colony  & 
Newport  Railway  Co.,  103  ]\Iass.  1.  But  in  trespass  against  a  company  for  con- 
structing its  road  through  plaintiff's  land,  the  preventing  of  his  cattle  from 
thriving,  is  not  so  remote  a  consequence  of  the  act  charged  that  it  may  not  be 
made  a  ground  of  damage.  Baltimore  &  Ohio  Railroad  Co.  y.  Thompson,  10 
Md.  70.  The  ground  assumed  by  the  court  in  Pennsylvania  is,  that  an  injury 
to  buildings,  standing  near  the  line  of  a  railway,  by  fire  from  the  company's 
engines,  when  properly  constructed  and  prudently  managed,  is  too  remote  and 
uncertain  to  form  an  element  in  estimating  damages  to  the  land-owner,  either 
when  part  of  the  land  is  taken,  or  the  statute  provides  for  damages  to  all  per- 
sons "  injuriously  affected  "  by  the  company's  works.  There  is  an  embarrass- 
ment attending  all  attempts  to  define  the  class  of  injuries  which  do,  or  which 
do  not,  come  within  the  rule  of  legal  consequential  injuries,  by  the  construction 
or  operation  of  railways.  But  it  seems  important  to  distinguii-h  between  a 
railway,  as  one  of  the  legitimate  u.ses  to  which  the  proprietor  of  land  may  put 
it,  for  the  purpose  of  private  transportation,  and  on  which  he  might  no  doubt 
use  locomotive  steam-engines,  and  the  use  of  such  engines  on  a  public  railway. 
In  the  former  case  the  land-owner  would  not  be  liable  to  an  adjoining  proprie- 
tor except  for  want  of  care,  skill,  or  prudence  in  the  construction  or  use  of  Jus 
engines.  The  same  would  probably  be  true  of  a  public  company,  if  the  legis- 
lature did  not  subject  it  to  any  consequential  damage  resulting  from  the  nature 
of  the  business.  But  where  they  are,  as  in  England,  and  many  of  the  Ameri- 
can states,  made  liable,  either  as  part  of  the  price  of  land  taken  or  as  a  distinct 

(r)  Lance  r.  Chicago,  Milwaukee,  under  special  statute,  Swinney  v.  Fort 
&St.  Paul  Railroad  Co.,  57  Iowa,  G3G.  Wayne,  Muncie,  &  Cincinnati  Rail- 
But  see  contra,  Colvill  v.  St.  Paul  &  road  Co.,  59  Ind.  205;  Lafayette, 
Chicago  Railway  Co.,  19  Minn.  2S3;  Muncie,  &  Bloomington  Railroad  Co. 
Addeu  V.  White  ^Mountains  Railroad  i-.  Murdock,  GS  Ind.  137. 
Co.,  55  N.  II.  413 ;  and,  in  Indiana, 

[*200] 


310  EMINENT    DOMAIN.  [PART   III. 

*  Nor  can  any  common-law  action  be  sustained  for  such  damage 
unless  where  actual  loss  intervenes  through  the  negligence  of  the 
company. 

*  9.  In  an  English  case  ^^  it  was  held,  after  extended  argument 

ground  of  claim,  to  all  consequential  damage  caused  to  the  land-owner,  by  both 
the  construction  and  the  operation  of  their  roads  or  either  of  them,  in  a  prudent 
and  proper  manner,  it  seems  difficult  to  escape  the  conclusion,  that  the  exposure 
of  property  along  the  line  of  a  railway  to  loss  by  fires  communicated  by  the 
company's  engines,  is  one  of  the  most  direct  sources  of  consequential  injury 
which  can  be  imagined.  It  is  more  direct  and  substantial  than  that  from  noise, 
dirt,  dust,  smoke,  and  vibration  of  the  soil,  all  of  which,  under  circumstances, 
have  been  held  proper  elements  of  damage  to  be  considered.  Perhaps  none  of 
them  are  absolute  grounds  of  damage  in  all  cases.  That  depends  very  much 
on  the  nearness  of  the  track  to  the  land ;  and  other  circumstances  may  perhaps 
deserve  consideration,  in  many  cases.  But  where  the  track  passes  directly 
through  lands,  near  where  buildings  are  already  erected,  it  is  difficult  to  con- 
jecture on  what  ground  it  could  be  claimed  that  the  increased  exposure  to  fire 
was  not  a  serious  detriment  to  the  owner.  It  is  certain  it  must  very  seriously 
enhance  the  rate  of  insurance,  and  proportionally  diminish  the  value  of  the 
rent,  and  of  the  buildings.  As  was  said  by  Shaw,  C.  J.,  in  Locks  &  Canals 
Proprietors  v.  Nashua  &  Lowell  Railroad  Co.,  10  Cush.  385,  it  is  incumbent 
on  one  who  claims  damage  on  this  ground  to  show  that  tlie  company's  track 
ran  so  near  his  buildings  "  as  to  cause  immitient  and  appreciable  danger  by  fire." 
When  it  is  undertaken  to  be  decided,  as  a  question  of  law,  that  in  no  case  is 
danger  from  fire,  by  the  proper  use  of  the  company's  engines,  to  be  considered 
in  estimating  land  damages,  it  is  certainly  contrary  to  the  general  course  of 
decisions  upon  the  subject,  if  not  to  the  very  principle  upon  which  such  com- 
panies have  been  subjected  to  such  damages  as  they  cause  to  land-owners,  be- 
yond what  accrues  from  tlie  ordinary  use  of  lands  for  building  and  agricultural 
purposes.  These  decisions  in  Pennsylvania  are  still  maintained  there,  and  the 
rule  has  been  applied  to  the  case  of  buildings  where  the  owner  is  compelled  to 
pay  a  higher  rate  of  insurance  in  consequence  of  the  proximity  of  the  railway. 
Patten  v.  Northern  Central  Railroad  Co.,  33  Penn.  St.  42G.  It  is  here  main- 
tained that  any  claim  for  damages  in  consequence  of  the  mere  intrusion  of  noise 
and  bustle  upon  one's  seclusion  is  essentially  antisocial,  and  at  war  with  the 
fundamental  laws  of  society,  which  we  should  not  be  inclined  to  question.  And 
as  to  all  mere  conjectural  or  contingent  advantages  and  disadvantages,  it  may 
well  be  said  they  are  too  remote  to  form  an  element  in  estimating  laud  damages. 
Searle  o.  Lackawanna  Railroad  Co.,  33  Penn.  St.  57.  But  we  cannot  admit 
that  either  of  these  rules  has  any  just  application  to  exposure  to  fire  from  the 
company's  engines,  where  the  daTiger  is  certain  and  inevitable.     I'^fra,  §  82. 

12  Brand  v.  Hammersmith  &  City  Railroad  Co.,  Law  Rep.  2  Q.  B.  223;  s.  c.  12 
Jur.  N.  s.  336;  s.  c.  affirmed  in  House  of  Lords  by  a  majority  of  the  law  lords. 
Lord  Cairns  and  a  majority  of  the  judges  dissenting,  18  W.  R.  12;  Law 
Rep.  4  H.  L.  171.  See  also  Lafayette  Plank- Road  Co.  v.  New  Albany  Rail- 
road Co.,  13  Ind.  90. 

[*291,  *292] 


§'5.] 


ACTION    FOR   CONSEQUENTIAL   DAMAGES. 


311 


and  careful  consideration,  that  the  owner  of  a  house  situated 
close  to  a  i-aihvay,  and  wliich  suffers  deprti^iation  in  value  from 
vibration  and  smoke,  not  caused  by  any  negligent  use  of  tlic 
railway,  but  being  the  inevitable  result  of  the  ordinary  use,  has 
no  right  to  compensation  under  the  English  statute  or  by  dis- 
tinct action  at  law.  The  case  is  put  upon  the  ground  that  the 
legislature  having  legalized  the  use  of  locomotive  steam-engines 
by  railway  companies,  adjoining  proprietors  must  submit  to  the 
incvitahle  consequences  of  a  lawful  business,  however  inconvenient 
it  may  become  ;  and  can  sustain  no  action  for  damages  any  nnjro 
than  for  the  exercise  of  any  other  legal  business  which  might 
depreciate  the  value  of  property  in  the  neighborhood.  The  Eng- 
lish statutes  are  construed  to  give  compensation  only  for  injuries 
sustained  by  the  construction  and  not  by  the  use  of  a  railway. 


•SECTION  XIII. 


Action  for  Consequential  Damages. 


1.  Statute  remedy  for  lands  "  injuriously 

affected. " 

2.  Without  statute  an  action  will  not  lie. 

3.  But  otlicrwise  for  negligence  in  con- 

struction, or  use. 

4.  Statute  remedy  exclusive. 


5.  Minerals  reserved.     Working  of  mine 

prevented. 

6.  Damages  for  taking  land  of  railway 

for  highway. 

7.  Compensation  for  minerals,  when  re- 

coverable. 


§  75.  1.  The  liability  of  railways  for  consequential  damage  to 
the  adjoining  land-owners  must  depend  upon  the  provisions  in 
tiicir  charters,  and  the  general  laws  of  the  state.  In  England 
railway  companies  are,  by  express  statute,^  made  liable  to  tho 
owners  of  all  lands  "  injuriously  affected "  by  their  railways. 
And  under  this  statute  it  has  been  determined,  that  if  the  com- 
pany do  any  act,  which  would  be  an  actionable  injury  without 
the  protection  of  the  special  act  of  the  legislature,  they  are  liable 
under  the  statute.^  So  that,  there,  any  act  of  a  railway  company 
amounting  to  a  nuisance  in  a  private  person,  and  causing  special 

1  Statute  8  &  9  Vict.  c.  8,  §  GS. 

2  Glover  v.  North  Staffordshire  Raihoad  Co.,  IG  Q.  B.  912;  a.  c.  5  Eng. 
L.  &Eq.  335;  infra,  §  82. 

[*293] 


312  EMINENT   DOMAIN.  [PART   III. 

damage  to  any  particular  land-owner,  is  good  ground  of  claiming 
damages  under  this  section  of  the  statute.-'^  (a) 

2.  But  in  the  absence  of  all  statutory  provision  upon  the  subject, 
railways  arc  not  liable  for  necessary  consequential  damages  to 
land-owners,  no  portion  of  whose  land  is  talccn,  where  they  con- 
struct and  operate  their  roads  in  a  skilful  and  prudent  manner.* 

"  Hatch  V.  Vermont  Central  Railroad  Co.,  25  Vt.  49;  s.  c.  1  Redf.  Am. 
Railw.  Cas.  28.5;  see  infra^  §  82. 

■*  Monongahela  Navigation  Co.  v.  Coons,  6  Watts  &  S.  101 ;  Radcliff  v. 
Brooklyn,  4  Comst.  19.5;  Philadelphia  &  Trenton  Railroad  Co.,  6  Wliart.  25; 
Seneca  Road  Co.  v.  Auburn  &  Rochester  Railroad  Co.,  5  Hill,  N.  Y.  170;  Hatch 
r.  Vermont  Central  Railroad  Co.,  25  Vt.  49;  Richardson  v.  Vermont  Central 
Railroad  Co.,  25  Vt.  465;  Arnold  v.  Hudson  River  Railroad  Co.,  49  Barb.  108 ; 
Cleveland  &  Pittsburg  Raih'oad  Co.  v.  Speer,  56  Penn.  St.  325.  And  even  such 
acts  of  a  railway  company  as  might  have  been  taken  into  account  in  estimating 
land  damages,  will  afford  no  ground  of  action  against  the  company.  Pitts- 
burg, Fort  Wayne,  &  Chicago  Railroad  Co.  v.  Gilleland,  56  Penu.  St.  445. 

There  are  many  other  cases  confirming  the  same  general  view  stated  in  the 
text.  Heniy  v.  Pittsburgh  &  Alleghany  Bridge  Co.,  8  Watts  &  S.  85;  Can- 
andaigua  &  Niagara  Railroad  Co.  v.  Payne,  16  Barb.  273,  where  it  is  held,  that 
injury  to  a  mill  on  another  lot  of  the  same  land-owner,  in  consequence  of  the 
construction  and  operation  of  the  railway,  is  a  matter  with  which  the  com- 
missioners have  nothing  to  do  in  estimating  damages  for  land.  So  in  Troy 
&  Boston  Railroad  Co.  v.  Northern  Turnpike  Co.,  16  Barb.  100,  it  was  held 
that  the  consideration  that  the  business  of  a  turnpike,  which  claimed  damage, 
would  be  diminished  by  the  construction  of  the  railway  along  the  same  line  of 
travel,  should  be  disregarded  in  estimating  damage  to  such  turnpike.  "  Every 
public  improvement,"  say  the  court,  "  must  affect  some  property  favorably,  and 
some  unfavorably,  from  the  necessity  of  the  case.  When  this  effect  is  merely 
consequential  the  injui-y  is  damnum  absque  injuria.  Though  their  property  has 
undoubtedly  depreciated  by  the  construction  of  the  railway,  yet  the  turnpike 
company  enjoy  all  the  rights  and  privileges  secured  to  them  by  their  charter, 
and  no  vested  rights  have  been  violated." 

Nor  is  one  entitled  to  damage,  in  consequence  of  a  highway  being  laid  upon 
his  line,  thus  compelling  him  to  maintain  the  whole  fence.  Kennett's  Peti- 
tion, 4  Fost.  N.  II.  139.     In  Albany  Northern  Railroad  Co.  v.  Lansing,  16 

(a)    Thus,    in    Hopkins     v.    Great  &  Mississippi  River  Railroad  Co.,  33 

Northern   Railway  Co.,  Law  Rep.  2  Wis.  629,  it  was  held  that  the  com- 

Q.  B.  224,  it  was  held  that  a  company  pany  was  liable  for  damage  done  to 

was  not  liable  to  the  owner  of  an  an-  mill  property  by  rendering  it  unsafe 

cient  ferry  for  loss  of  traffic  consequent  for  the  storage  of  lumber,  through  con- 

upon  the  erection  of  a  bridge  with  a  struction  of  road  over  other  lots  accessi- 

footway  erected  to  provide  for  a  new  ble  through  the  public  streets  and  used 

traffic.     But  in  Chapman  v.  Oshkosh  in  connection  with  the  mill  property. 
[*293] 


§  75.]  ACTION    FOR   CONSEQUENTIAL    DAMAGES.  313 

*  3.  But  if  the  railways  arc  guilty  of  imprudence,  or  want  of 
skill,  either  in  the  construction  or  use  of  their  road,  they  are  liable 
*  to  any  one  suffering  special  damage  thereby,''  as  in  needlessly 

Barb.  G8,  it  is  said,  "  The  commissioners,  in  estimating  the  damages,  should 
not  allow  consequential  and  prospective  damages." 

Ill  riant  V.  Long  Island  Railroad  Co  ,  10  Barb.  20,  it  is  held  not  to  be  an 
illegal  use  of  a  street  to  allow  a  railway  track  to  be  laid  on  it,  and  that  the 
temporary  inconvenience  to  which  the  adjoining  proprietors  are  subject  while 
the  work  of  excavation  and  tunnelling  is  going  on  is  damnum  abaque  injuria. 
So  also  in  regard  to  the  grade  of  a  street  having  been  altered  by  a  railway, 
by  consent  of  the  common  council  of  the  city  of  Albany,  who  by  statute  were 
required  to  assess  damages  to  any  freeholder  injured  thereby,  and  who  had 
done  so  in  this  case,  it  was  held  that  no  action  could  be  maintained  against 
the  railway.  Chapman  ik  Albany  &  Schenectady  Railroad  Co.,  10  Barb.  300; 
Adams  v.  Saratoga  &  Washington  Railroad  Co.,  11  Barb.  414. 

And  in  Wolte  v.  Covington  &  Lexington  Railroad  Co.,  15  B.  Monr.  404, 
it  was  held,  that  the  municipal  authority  of  a  city  might  lawfully  alter 
the  grade  of  a  street,  for  any  public  purpose,  without  incurring  any  respon- 
sibility to  the  adjacent  landholders,  and  might  authorize  the  passage  of 
a  railway  through  the  city,  along  the  streets,  and  give  it  the  power  to  alter 
the  grade  of  the  streets,  as  might  be  requisite  for  that  purpose,  this  being 
done  at  the  expense  of  the  company,  and  by  paying  damages  to  such  ad- 
jacent proprietors  as  should  be  entitled  to  them.  But  one  who  urged  the 
laying  of  the  road  in  that  place,  on  tlie  ground  that  it  would  benefit  him,  and 
who  was  thereby  benefited,  cannot  I'ecover  damages  of  the  company,  upon  the 
maxim,  ^^  colenli  non  Jit  injuria."  A  railway,  when  so  authorized,  "is  not  a 
purpreslure,  or  encroachment,  upon  the  public  property  or  rights." 

And  where  a  railway  company  erect  a  fence  on  land  which  it  owns  in  fee, 
for  the  purpose  of  keeping  the  snow  off  the  road,  it  is  not  liable  for  damages 
sustained  by  the  owner  of  land  on  the  opposite  side  of  the  fence,  by  the  accu- 
mulation of  snow,  occasioned  by  the  fence.  Car.son  v.  Western  Railroad  Co., 
20  Law  Rep.  350;  s.  c.  8  Gray,  423.  See  also  Morris  &  Essex  Railroad  Co. 
V.  Newark,  2  Stockt.  Ch.  352. 

And  where  the  act  complained  of  is  the  construction  of  an  embankment,  by  a 
railway  conipany,  at  the  mouth  of  a  navigable  creek,  in  which  the  plaintiff  ha.s  a 
prescriptive  right  of  storing,  landing,  and  rafting  lumber,  for  the  use  of  his  .saw- 
mill, whereby  the  free  flow  of  the  water  is  obstructed,  and  the  plaintiff  thereby 
deprived  of  the  full  enjoyment  of  his  privilege,  the  injury  is  regarded  as  the  di- 
rect and  immediate  con.sequence  of  the  act  of  the  company,  and  it  is  liable  for 
the  damages.     Tinsman  v.  Belvidere  Delaware  Railroatl  Co.,  2  Dutcher,  148. 

See  also  Rogers  i\  Kennebec  &  Portland  Railroad  Co.,  '.)'y  Me.  310;  Burton 
I'.  Philadelphia,  Wilmington,  &  Baltimore  Railroad  Co.,  4  llarr.  2.52;  Hollis- 
ter  V.  I'nion  Co.,  9  Conn.  430;  Whittier  v.  Portland  &  Kennebec  Railroad  Co., 
38  Me.  2G. 

'  Whitcomb  r.  Vermont  Central  Railroad  Co.,  25  Vt.  69;  Hooker  i-.  New 
York  &  New  Haven  Railroad  Co.,  14  Conn.  140;  infra,  §  79.     And  there  is 

[*294,  *21I5] 


314  EMINENT   DOMAIN.  [PART   III. 

diverting  watercourses  and  streams,  and  not  properly  restoring 
tliem,^  whereby  lands  are  ovci'fiowcd  or  injured.^ 

4.  And  the  remedy  given  by  statute  for  taking  or  injuriously 
affecting  lands  is  exclusive  of  all  remedies  at  common  law,  by 
action,  or  bill  in  equity,  unless  provided  otherwise  in  the  statute.^ 

5.  But  in  one  English  case,'^  the  House  of  Lords  held,  that  *  a 

the  same  liability  although  the  lands  are  not  situate  on  the  stream.  Brown  r. 
Cayuga  &  Susquehanna  Railroad  Co.,  12  N.  Y.  48G. 

A  party  is  liable  to  an  action  at  the  suit  of  the  mill-owner,  for  diverting  the 
water  from  a  spring,  wliich  ran  in  a  well-defined  channel  into  a  stream  sup- 
plying a  mill,  notwithstanding  he  had  permission  from  the  owner  of  the  land 
•where  the  spring  arose.  Aliter  if  the  spring  spread  out  on  the  land,  having 
no  channel.  As  the  land-owner  might  drain  his  land,  so  he  may  give  permis- 
sion to  others  to  do  so.  Dudden  v.  Union,  1  H.  &  N.  627.  See  also  Brown 
V.  Illiu.s,  27  Conn.  84;  Robin.son  r.  New  York  &  Erie  Railroad  Co.,  27  Barb. 
512;  Waterman  v.  Connecticut  &  Passumpsic  Rivers  Railroad  Co.,  30  Vt.  610; 
Henry  v.  Vermont  Central  Raih'oad  Co.,  30  Vt.  638.  But  in  this  last  case  it 
was  decided  that  the  effect  of  erecting  a  bridge  in  a  stream  on  the  course  of 
the  current  below  was  so  far  incapable  of  being  known  or  guarded  against, 
that  there  was  no  duty  imposed  on  railway  companies  to  guard  against  an  in- 
jury to  land-owners  below  by  a  change  of  the  current.  See  also  New  Albany 
&  Salem  Railroad  Co.  v.  Higraan,  18  Ind.  77;  Same  i\  Huff,  19  Ind.  315; 
Colcough  V.  Nashville  &  Northwestern  Raih-oad  Co.,  2  Head,  171.  And  in 
Cracknell  v.  Thetford,  Law  Rep.  4  C.  P.  629,  it  was  held  that  where  a  muni- 
cipality, by  act  of  parliament,  is  authorized  to  impi'ove  the  navigation  of  a 
river,  and  in  so  doing  erect  staunches  in  the  stream,  whereby  seaweed  and 
sand  accunmlate,  so  as  to  cause  the  stream  to  overflow  and  do  damage  to  a 
riparian  owner,  he  will  have  no  remedy  against  the  corporation,  unless  some 
duty,  in  that  respect,  was  impo.sed  by  the  act. 

^  Regina  i'.  Eastern  Counties  Railway  Co.,  2  Q.  B.  347,  569;  s.  c.  3  Railw. 
Gas.  466.  But  in  this  case  the  act  expressly  provided,  that  the  verdict  and 
judgment  should  be  conclusive  and  binding,  which  most  railway  acts  do  not; 
but  it  seems  questionable  if  this  will  make  any  difference.  East  &  West  India 
Docks  &  Birmingham  Junction  Railway  v.  Gattke,  3  Macn.  &  G.  155;  s.  c.  3 
Eng.  L.  &Eq.  59;  infra,  §  81. 

"  Caledonia  Railroad  Co.  v.  Spi'ot,  2  Macq.  Ap.  Cas.  499;  s.  c.  39  Eng.  L. 
&  Eq.  16.  But  in  Bradley  v.  New  York  &  New  Haven  Railroad  Co.,  21  Conn. 
294,  where  the  defendants'  charter  gave  power  to  take  land,  being  liable  for 
all  damages  to  any  person  or  persons,  and  it  excavated  a  lot  (the  plaintiff's)  so 
as  to  weaken  the  foundations  of  his  house,  and  erected  an  embankment  in  the 
highway  opposite  his  house,  .so  as  to  obscure  the  light,  and  render  it  otherwise 
unfit  for  use,  it  was  held,  that  this  did  not  constitute  a  taking  of  plaintiff's  land, 
but  that  defendants  were  liable  to  consequential  damage  under  the  charter. 

But  in  the  early  case  of  the  Wyrley  Navigation  v.  Bi-adley,  7  East,  368, 
where  the  act  of  parliament  reserved  to  the  proprietor  of  mines  the  right  to 
dig  coal,  unless  the  company,  on  notice,  elected  to  purchase  and  make  cora- 

[*296] 


§  75.]  ACTION    FOR    CONSEQUENTIAL    DAMAGES.  315 

railway  company  which  had  been  condemned  to  pay  for  land,  the 
owner  reserving  the  minerals,  were  not  liable  to  the  land-owner, 
by  reason  of  his  inability  to  work  a  mine  which  he  had  discovered 
under  the  railway.  The  Lord  Chancellor  said,  "  The  conveyance 
of  the  surface  of  land  gives  to  the  grantee  an  implied  right  of 
supj)ort,  sufiicicnt  for  the  object  contemplated,  from  the  soil  of 
the  grantor  adjacent  as  well  as  subjacent." 

G.  And  it  has  been  held,  that  in  estimating  damages  to  a  rail- 
way in  consequence  of  laying  a  highway  across  land  occupied  by 
them,  it  is  not  proper  to  take  into  account  the  probable  increase 
of  business  to  the  company  in  consequence.^ 

7.  And  where  the  company  take  land,  but  decline  to  purchase  the 
minerals  after  notice  from  the  owner  of  his  intention  to  work  them, 
pursuant  to  the  English  statute,  the  company  is  not  entitled  to  the 
subjacent  or  adjacent  support  of  the  minerals.  And  where  the  com- 
pany gave  notice,  under  the  statute,  that  the  working  of  the  mines 
was  likely  to  injure  the  railway,  the  owner  was  held  entitled  to  re- 
cover compensation  which  had  been  assessed  under  the  statute.^ 

pcnsation,  it  is  held  that  where  the  canal  was  damaged  by  the  near  approach 
of  tlie  mine,  after  such  notice,  and  no  compensation  made,  the  coal-owner 
was  not  liable,  although  it  is  there  said  to  be  otherwise  in  case  of  a  house 
undermined  by  digging  on  the  soil  of  the  grantor.  But  this  case  seems  to 
turn  on  the  reservation  in  the  grant. 

*  Boston  &  Maine  Railroad  Co.  v.  Middlesex  County,  1  Allen,  321.  The 
reservation  in  a  deed  of  land  to  a  railway  company  of  the  right  to  make  a 
crossing  over  the  land,  creates  an  easement  in  the  land,  but  does  not  extend 
such  easement  across  the  other  lands  of  the  company,     lb. 

9  Fletcher  v.  Great  Western  Railway  Co.,  4  II.  &  N.  212.  And  in  North 
Eastern  Railway  Co.  v.  Elliott,  Johns.  &  II.  14.5;  s.  c  G  Jur.  N.  s.  817,  it  waa 
held  that  the  general  principle,  that  a  vendor  of  land  sold  for  a  particular  use 
cannot  derogate  from  his  own  grant  by  doing  anything  to  prevent  the  land  sold 
from  being  put  to  that  use,  applies  to  sales  to  railways  under  compulsory 
powers;  but  that  this  principle  will  not  compel  the  vendor  of  land  to  perpet- 
uate anything  on  the  portion  of  the  land  retained  by  him,  which  is  merely 
accidental,  though  existing  and  of  long  standing  at  the  date  of  the  sale. 
Kence,  where  a  railway  company  took  land  for  a  bridge  in  a  mining  district, 
where  a  shaft  had  been  sunk  many  years  before,  but  the  working  of  the  mines 
had  been  abandoned  and  the  shaft  filled  witli  water  for  a  long  time  before  the 
taking  of  the  land,  it  was  held  that  the  land-owner  was  not  precluded  from 
draining  the  water  and  working  the  mine,  although  the  effect  must  be  to 
lessen  the  support  of  the  bridge  to  some  extent,  by  withdrawing  the  hydro- 
static pressure  on  the  roof  of  the  mine,  and  the  consequent  support  of  the 
superincumbent  strata  of  earth. 

[*296] 


316 


EMINENT  DOMAIN. 


[part  III. 


^SECTION   XIV. 


Right  to  occupy  Iligliway. 


1.  Decisions  as  to  the  right  of  abutting 

owners    to    compensation   conflict- 
ing. 

2.  First  held  that  owners  of  tlie  fee  were 

entitled  to  additional  damages. 

3.  Principle  would  seem  to  support  such 

a  rule. 

4.  But  many  cases  are  the  other  way. 

6.  Legislatures  should  require  additional 
compensation. 


6.  Equity  will  not  enjoin  railways  from 

occupying  streets  of  a  city. 

7.  Such  compensation  required  in  some 

of  tiie  states. 

8.  Recent  decisions  show  an  inclination 

to  require  compensation. 
n.  (a)  Right  of  the  owner  of  the  fee 
to   additional  compensation  would 
seem  to  be  settled. 


§  76.  1.  The  decisions  are  contradictory  in  regard  to  the  right 
of  a  railway  company  to  lay  its  track  along  a  common  highway, 
without  making  additional  compensation  to  land-owners  adjoining 
such  highway,  and  who,  in  the  country,  commonly  own  to  the 
middle  of  the  highway,  (a) 


(a)  There  seems  now  to  be  a  settled 
distinction  between  cases  where  the 
fee  is  in  the  abutter  and  those  where 
it  is  not.  Thus,  various  courts  have 
held  that  mere  dedication  of  a  street 
to  public  use  will  not  authorize  its 
use  for  a  railway  without  compensa- 
tion to  the  abutters.  Cosby  v.  Owens- 
boro  &  Russellville  Railroad  Co.,  10 
Bu.«h,  288;  Jeffersonville  Railroad  Co. 
V.  Esterle,  13  Bush,  6G7  ;  Sherman 
V.  Milwaukee,  Lake  Shore,  &  ^Vestern 
Railroad  Co.,  40  Wis.  645;  Cox  o. 
Louisville,  New  Albany,  &  Chicago 
Railroad  Co.,  48  Ind.  178;  Terre 
Haute  &  Indianapolis  Railroad  Co.  v. 
Scott,  74  Ind.  29 ;  Grand  Rapids  & 
Indiana  Railroad  Co.  v.  Ileisel,  .38 
Mich.  62;  Same  v.  Same,  47  Mich. 
393;  Gulf,  Colorado,  &  Santa  Fe 
Railway  Co.  v.  Graves,  10  Am.  & 
Eng.  Railw.  Cas.  199;  Hastings  & 
Grand  Island  Railroad  Co.  v.  Ingalls, 
[*297] 


15  Neb.  123.  Although  the  exclu- 
sive use  of  the  street  is  in  the  public 
even,  the  fee  being  in  the  abutter; 
Jeffersonville  Railroad  Co.  v.  Esterle, 
13  Bush,  667.  And  although  abutters 
hold  subject  to  the  i-ight  to  appropri- 
ate the  street  to  such  uses,  compatible 
with  the  end  for  which  the  street  was 
established,  as  the  general  good  may 
require.  Cosby  v.  Owensboro  & 
Russellville  Railroad  Co.,  10  Bush, 
288.  And  so  various  courts  have  held 
that  in  general  an  abutter  not  owning 
the  fee  of  the  street,  cannot  recover 
for  the  mere  use  of  the  street  for  rail- 
way purposes.  Barney  v.  Keokuk, 
94  U.  S.  .324;  Rio  Grande  Railroad 
Co.  V.  Brownsville,  45  Tex.  88;  Eliza- 
bethtown  &  Paducah  Railroad  Co.  v. 
Thompson,  79  Ky.  52;  Houston  & 
Texas  Central  Railroad  Co.  v.  Odum, 
53  Tex.  343;  Botts  v.  Missouri  Pa- 
cific Railroad  Co.,  11  Mo.  Ap.  589; 


§70.] 


niGHT   TO    OCCUPY    HIGHWAY. 


317 


2.    In  some  of  the  early  cases  ii])on  tliis  siiljject  it  seems  to 
have  been  considered,  that,  under  such  circumstances,  the  land- 


(Jreene  v.  New  York  Central  &  Hudson 
lliver  Railroad  Co.,  12  Ab.  N.  Cas. 
l:.'i;  Simplot  v.  Chicajro,  Milwaukee, 
&  St.  Paul  Kailway  Co.,  16  Fed.  Rep. 
;j.'0 ;  Indianapolis,  Bloomiiigton,  & 
\Vestei  u  Railroad  Co.  v.  Hartley,  07 
111.  4;39;  Stetson  v.  Chicago  &  Evans- 
ton  Railroad  Co.,  75  111.  74.  But  that 
he  may,  for  direct  damage  resulting 
from  the  construction  or  operation  of 
the  road,  as,  e.  g.,  from  smoke,  cinders, 
sparks,  or  from  the  cracking  of  walls 
by  tlie  rapid  moving  of  heavy  trains, 
or  from  interference  with  the  means 
of  ingress  and  egress.  Stone  v.  Fair- 
bury,  Pontiac,  &  Northwestern  Rail- 
road Co.,  68  111.  394;  Jeffersonville 
Railroad  Co.  v.  Esterle,  13  Bush,  007; 
Elizabethtown  &  I'aducah  Railroad 
Co.  V.  Combs,  10  Bush,  382.  But 
see  Struthers  v.  Dunkirk,  Warren,  & 
Pittsburg  Railway  Co.,  87  Penn.  St. 
282.  Or  for  an  obstruction  of  the 
street  by  cars  or  the  like,  causing  a 
nuisance.  Grand  Rapids  &  Indiana 
Railroad  Co.  v.  Ileisel,  38  Mich.  62; 
Severy  v.  Central  Pacific  Railroad,  Co  , 
51  Cal.  19i.  And  see  Bracken  v. 
Minneapolis  &  St.  Louis  Railway  Co., 
29  Mitm.  41;  Ilussner  v.  Brooklyn 
City  Railroad  Co.,  30  llun,  409.  But 
see  Gear  v.  Railroad  Co.,  43  Iowa,  83. 
Or  for  any  damages  other  and  differ- 
ent from  those  sustained  by  the  general 
inihlic.  Chicago  &  Western  Indiana 
Railroad  Co.  v.  Ayres,  100  III.  all; 
Goltschalk  v.  Chicago,  Burlington,  & 
Quincy  Railroad  Co.,  14  Neb.  550. 
The  person  entitled  to  recover  for 
injury  from  the  laying  of  the  track 
is  the  owner  at  the  time  when  the 
laving  is  done,  not  a  subsequent 
grantee.  Dixon  v.  Baltimore  &  Poto- 
mac Railroad  Co.,  1  Mackey,  78.    And 


title  may  be  proved  by  adverse  posses- 
sion. Lawrence  Railroad  Co.  v.  Cobb, 
35  Ohio  St.  94. 

As  to  injury  to  the  abutter  fiom 
embankments,  see  Cosby  v.  Owtns- 
boro  &  Russellville  Railroad  Co.,  10 
Bush,  288;  Bunitt  v.  New  Haven, 
42  Conn.  174;  Pekin  v.  Winkel,  77 
111.  50;  Tate  v.  Missouri,  Kansas,  & 
Texas  Railway  Co.,  64  Mo.  149; 
Karst  V.  St.  Paul,  Stillwater,&  Taylor's 
Falls  Railroad  Co.,  23  Minn.  401. 
As  to  injury  from  additional  tracks, 
see  Davis  v.  Chicago  &  Northwestern 
Railway  Co.,  46  Iowa,  389;  Ingram 
V.  Chicago,  Dubuque,  &  Minnesota 
Railroad  Co.,  38  Iowa,  609.  As  to 
injury  from  change  of  grade,  see 
Central  Branch  Union  Pacific  Rail- 
road Co.  V.  Twine,  23  Kan.  585; 
Pittsburg,  Virginia,  &  Charleston 
Railroad  Co.  v.  Rose,  74  Penn.  St. 
302;  Nottingham  i-.  Baltimore  & 
Potomac  Railroad  Co.,  3  IMcArthur, 
517;  Kaiser  v.  St.  Paul,  Stillwater,  & 
Taylor's  Falls  Railroad  Co.,  22  Minn. 
149;  Buchner  v.  Chicago,  Milwaukee, 
&  Northwestern  Railway  Co.,  50  Wis. 
403.  As  to  injury  from  fire,  smoke, 
cinders,  &c.,  see  Chicago  &  Western 
Indiana  Railroad  Co.  v.  Berg,  10 
Brad.  Ap.  607;  Same  v.  George,  lb. 
046;  Same  v.  Phillips,  lb.  648;  Cosby  v. 
Owensboro&  Russellville  Railroad  Co., 
10  Bush,  288;  Elizabethtown,  Lexing- 
ton, &  Big  Sandy  Railroad  Co.  r. 
Combs,  10  Bush,  382.  As  to  injury 
from  negligence  in  construction,  see 
Ford  1'.  Santa  Cruz  Railroad  Co.,  50 
Cal.  290;  Brewer  v.  Boston,  Clinton,  & 
Fitchburg  Railroad  Co.,  113  Mass.  52; 
Cadle  V.  Muscatine  Western  Railroad 
Co.,  44  Iowa,  11.  As  to  the  mea.sureof 
damages,  see  Mix  v.  Lafavette,  Bloom- 
i*297J 


318 


EMINENT    DOMAIN. 


[part   III. 


owners  were  entitled  to  additional  compensation,  when  the  land 
was  converted  from  a  common  carriage-way  to  a  railway.^ 


^  Presbyterian  Society  v.  Auburn  &  Rochester  Railroad  Co.,  3  Hill,  N.  Y. 
5G7.     The  case  of  Fletcher  v.   Auburn  &  Syracuse  Railroad  Co.,  25  Wend. 


ington,  &  Mississippi  Railway  Co.,  67 
111.  319;  St.  Louis,  Yandalia,  &  Terra 
Haute  Railroad  Co.  v.  Capps,  72  111. 
188;  Hartz  v.  St.  Paul  &  Sioux  City 
Railroad  Co.,  21  Minn.  358;  In  re 
New  York,  West  Shore,  &  Buifalo 
Railway  Co.,  29  Hun,  64G;  Syracuse 
&  Northern  Railroad  Co.  v.  Alexander, 
3  Thomp.  &C.  784;  Chicago,  Bur- 
lington, &  Quincy  Railroad  Co.  v. 
McGinnis,  79  111.  269;  Jeffersonville 
Railroad  Co.  f.  Esterle,  13  Bush,  667; 
Grand  Rapids  &  Indiana  Railroad  Co. 
V.  Heisel,  38  Mich.  62;  Henderson  v. 
New  York  Central  Railroad  Co.,  78 
N.  Y.  423;  Kucheman  v.  Chicago, 
Clinton,  &  Dubuque  Railway  Co.,  46 
Iowa,  366;  O'Connor  v.  St.  Louis, 
Kansas  City,  &  Northern  Railway  Co., 
56  Iowa,  735;  Chicago  &  Western 
Indiana  Railroad  Co.  v.  Berg,  10 
Brad.  Ap.  607;  Pittsburg,  Virginia, 
&  Charleston  Railroad  Co.  v.  Rose, 
71  Penn.  St.  302;  Mix  v.  Lafayette, 
Bloomington,  &  Mississippi  Railway 
Co.,  67  111.319. 

The  legislature  has  power  to  au- 
thorize the  construction  of  a  railway 
in  a  highway  or  a  street.  In  re  Pros- 
pect Park  &  Coney  Island  Railroad 
Co.,  8  Hun,  30;  s.  c.  67  N.  Y.  371; 
Atlantic  &  Pacific  Railroad  Co.  v.  St. 
Louis,  3  Mo.  Ap.  315;  Danville, 
Hazleton,  &  Wilkesbarre  Railroad  Co. 
t-.  State,  73  Penn.  St.  29;  Brainard  r. 
Missisquoi  Railroad  Co.,  48  Vt.  107; 
Perry  v.  New  Orleans,  jVIobile,  & 
Chattanooga  Railroad  Co.,  55  Ala. 
413;  Washington  Cemetery  v.  Pros- 
pect Park  &  Coney  Island  Railroad 
Co.,  68  N.  Y.  591.  It  cannot  be 
[*297] 


constructed  without  such  authority. 
Pennsylvania  Railroad  Co.'s  Appeal, 
93  Penn.  St.  150.  And  this,  as  in 
Iowa,  without  consent  of  municipal 
authority.  Chicago,  Newton,  ik 
Southwestern  Railroad  Co.  ik  Newton, 
36  Iowa,  299;  Hines  v.  Keokuk  &  Des 
Moines  Railroad  Co.,  42  Iowa,  636; 
State  V.  Davenport  &  St.  Paul  Rail- 
road Co.,  47  Iowa,  .507.  But  a  grant 
of  a  right  to  run  a  road  through  a 
town  does  not  operate  as  a  grant  of 
the  use  of  the  street.  St.  Louis,  Van- 
dalia,  &  Terre  Haute  Railroad  Co.  v. 
Haller,  82  111.  208.  But  see  Houston 
&  Texas  Central  Railroad  Co.  v. 
Odum,  53  Tex.  343,  where  it  is  held 
that  a  chai'ter  to  a  road  to  be  built  tx) 
a  certain  city  imported  authority  to 
enter  the  city  and  use  a  street.  Grant 
of  a  right  to  lay  a  track  in  a  street 
does  not  deprive  the  abutter  of  his 
right  to  damages.  Frith  v.  Dubuque, 
45  Iowa,  406;  Washington  Cemetery 
V.  Prospect  Park  &  Coney  Island  Rail- 
road Co.,  supra. 

And  so  the  legislature  may  give  a 
city  exclusive  control  of  its  streets  and 
alleys,  as  it  has  in  Illinois.  Chicago, 
&  Vincennes  Railroad  Co.  r.  People, 
92  111.  170.  And  in  such  case  the 
city  may  authorize  the  construction  of 
railways  in  the  streets.  Quincy  v. 
Chicago,  Burlington,  &  Quincy  Rail- 
road Co.,  92  111.  21;  Korlmel  v.  New 
Orleans  Railroad  Co.,  27  La.  An.  442. 
Or  in  the  alleys.  Heath  i-.  Des  Moines 
&  St.  Louis  Railroad  Co.,  10  Am.  & 
Eng.  Railw.  Cas.  313.  And  see  Cook 
V.  Burlington,  36  Iowa,  3.57.  And 
•where  permission   is   to  be  given  by 


§  7G.]  niciiT  TO  OCCUPY  highway.  .019 

*  3.   There  is  certainly  great  reason  in  this  view,  inasniucli  as 
(lie  land-owner's  entire  damage  is  to  be  assessed,  at  once,  and  it 

4GJ,  niii^lil  Iiave  been  put  on  the  same  ground,  Ijut  it  was  not.  The  ground 
assuuK'il  is,  that  the  land-owners  arc  entitled  to  consequential  damage,  in 
consequence  of  the  new  use  to  which  the  land  is  put,  which  amounts  to  nearly 
the  same  thing.  Philadelphia  &  Trenton  Railroad  Co.,  G  Wh.art.  25;  Milh.T 
V.  Auburn  &  Syracuse  Railroad  Co.,  G  Hill,  N.  Y.  Gl;  Mahon  v.  Utica  & 
Schenectady  Railroad  Co.,  Hill  &  Den.  Supp.  156.  And  in  Ramsden  v. 
Manchester  South  Junction  &  Altrincham  Railway  Co.,  1  Exch.  723,  the 
Court  of  Excheipier  exjiressly  decide,  that  a  railway  company  has  no  right 
even  to  tunnel  under  a  highway,  without  making  previous  compensation  to 
the  land-owner.  Seneca  Road  v.  Auburn  &  Rochester  Railroad  Co.,  5  Hill, 
170;  Troy  v.  Cheshire  Railroad  Co.,  3  Fost.  N.  H.  83.  But  a  distinction  is 
taken  between  the  property  of  adjoining  land-owners  in  the  highway  or 
street  in  cities,  and  in  the  country.  In  the  former  it  has  been  held  that 
the  fee  of  the  streets  is  under  the  sole  control  of  the  municipal  authorities, 
and  that  it  is  no  perversion  of  the  legitimate  use  of  the  streets  to  allow  a  rail- 
way conq>any  to  lay  its  track  on  them.  Plant  v.  Long  Island  Railroad  Co., 
10  Rarb.  2G;  Adams  v.  Saratoga  &  Washington  Railroad  Co.,  11  Barb.  414; 
Chapman  v.  Albany  &  Schenectady  Railroad  Co.,  10  Barb.  360;  Drake  v. 
Hudson  River  Railroad  Co.,  7  Barb.  508;  Applegate  v.  Lexington  &  Ohio 
Railroad  Co.,  8  Dana,  289;  Wolfe  v.  Covington  &  Lexington  Railroad  Co., 
15  B.  Monr.  404. 

In  Williams  v.  New  York  Central  Railroad  Co.,  18  Barb.  222,  216,  the 
court  say:  "  A  railroad  is  only  an  improved  highway,  and  the  use  of  a  street 
by  a  railway  is  one  of  the  modes  of  enjoying  a  public  easement."  But  see 
this  case  reversed,  infra.  A  general  power  to  pass  highways  in  the  construc- 
tion of  a  canal  or  railway  has  been  held  to  include  turnpikes  also.  Rogers  v. 
Bradshav,',  20  Johns.  735;  White  River  Turnpike  Co.  v.  Vermont  Central 
Raih'oad  Co.,  21  Vt.  590.  But  the  grant  of  a  railway  from  one  terminus  to 
another,  without  prescribing  its  precise  course  and  direction,  does  not,  prima 
facie,  confer  power  to  lay  out  the  railway  on  and  along  an  existing  liighway. 
The  legislature,  however,  may  grant  such  authority,  either  by  express  words 
or  necessary  imi)lication;  and  such  implication  may  result  either  from  the 
language  of  the  act  or  from  its  being  shown,  from  an  application  of  the  act  to 
the  subject-matter,  that  the  railway  cannot,  by  reasonable  intendment,'  be 
laid  in  any  other  line.  Springfield  v.  Connecticut  River  Railroad  Co.,  4  Cush. 
03;  8.  c.  1  Redf.  Am.  Railw.  Cas.  299.  But  in  general,  the  owner  of  land 
adjoining  a  highway  is  entitled  to  additional  compensation  where  it  is  put  to 
a  different  and  more  dangerous  use.  And  towns  have  an  interest  in  high- 
ways and  bridges  which  will  enable  them  to  maintain  an  action  on  the  case 
for  thoir  obstruction  or  destruction,   and  the  conversion    of   the   materials. 

ordinance,  a  resolution   will    answer     not  render  the  road  a  nuisance.     In- 
the    purpose.       Quincy    v.    Chicago,     gram  r.  Chicago.  Dubuque.  &  Minne- 
Burlington,  &  Quincy  Railroad   Co.,     sota  Railroad  Co.,  3S  Iowa,  669. 
supra.     Repeal  of  the  ordinance  will 

[*208] 


320  EMINENT   DOMAIN.  [PART   III. 

*  could  never  be  done  understandingly,  unless  the  use  to  which  it 
were  to  be  put  were  known  to  the  assessors.     And  it  is  obvious, 

Troy  V.  Cheshire  Raih'oad  Co.,  3  Fost.  N.  II.  83.  But  the  town  is  not 
liable  to  pay  damages  assessed  by  the  selectmen  in  laying  out  a  highway, 
at  the  request  of  a  railway  company,  made  necessary  to  supply  the  place 
of  one  taken  by  the  company  for  a  track.  Ellis  v.  Swanzey,  0  Fost.  N.  II. 
2G0. 

In  general,  it  may  be  stated  as  the  settled  doctrine  of  most  of  the  states, 
that  the  owner  of  land  bounded  on  a  highway  owns  to  the  centre  of  the  way. 
Buck  V.  Squiers,  22  Vt.  481,  495.  The  general  rule  as  to  monuments  re- 
ferred to  in  deeds  of  land  undoubtedly  is,  that  the  centre  of  such  monuments  is 
intended,  whether  it  be  stake,  stone,  tree,  rock,  or  a  highway  or  stream.  It 
is  undoubtedly  more  a  rule  of  policy  than  of  intention,  and  as  such,  to 
answer  its  end,  should  be  applied  in  every  case,  unless  a  clearly  defined  in- 
tention to  the  contrary  be  made  to  appear.  3  Kent  Com.  433;  Chatham  v. 
Brainerd,  11  Conn.  60;  Champlin  v.  Pendleton,  13  Conn.  23;  Livingston  v. 
New  York,  8  Wend.  85,  106;  Starr  v.  Child,  20  Wend.  149;  s.  c.  4  Hill,  309; 
Canal  Conmiissioners  v.  People,  5  Wend.  423;  s.  c.  13  Wend.  355;  Johnson 
V.  Anderson,  18  Me.  76;  Bucknam  v.  Bucknam,  3  Fairf.  463;  Lcavitt  v. 
Towle,  8  N.  II.  96;  Dovaston  v.  Payne,  2  Sm.  Lead.  Cas.  199,  and  iiotes  by 
Hare  &  Wallace;  Nicholson  v.  New  York  &  New  Haven  Railroad  Co.,  22 
Conn.  74. 

Bat  the  owner  of  the  fee  of  land  over  which  a  highway  passes  cannot 
maintain  a  bill  in  equity  to  enforce  an  order  of  commissioners  as  to  the  man- 
ner of  constructing  a  railway  where  it  crosses  the  highway,  but  the  same 
should  be  brought  by  the  principal  executive  officers  of  the  town  or  city. 
Brainard  v.  Connecticut  River  Railroad  Co.,  7  Cush.  506.  The  court  say  : 
"  It  is  only  where  the  owner  suffers  some  special  damage,  differing  in  kind 
from  that  which  is  common  to  others,  that  a  personal  remedy  accrues  to  him  ; 
and  certainly  no  rule  of  law  rests  on  a  wiser  or  more  sound  policy.  Were  it 
otherwise,  suits  might  be  multiplied  to  an  indefinite  extent,  so  as  to  create  a 
public  evil,  in  many  cases,  much  greater  than  that  which  was  sought  to  be 
redressed."  Stetson  v.  Faxon,  19  Pick.  147;  Quincy  Canal  Proprietors  v. 
Newcomb,  7  Met.  276;  Smith  v.  Boston,  7  Cush.  254;  Hughes  v.  Providence  & 
Worcester  Railroad  Co.,  2  R.  I.  493. 

In  Williams  v.  Natural  Bridge  Plank-Road  Co.,  21  i\Io.  580,  it  is  held  that 
the  grant  of  the  right  of  locating  a  plank-road  on  a  county  road  does  not 
exclude  the  idea  that  the  owner  of  the  soil  over  which  the  road  passes  should 
have  compensation  for  any  injury  he  may  sustain  by  converting  a  county 
road  into  a  plank-road.  This  case  is  put  by  the  court  on  the  ground  that  the 
plank-road  is  an  additional  burden  on  the  soil,  and  that  for  this  the  land- 
owner is  as  much  entitled  to  compensation  as  if  his  land  had  originally  been 
taken  for  the  purpose  of  a  plank-road;  and  that  to  deny  all  redress  in  such 
ca.se  is  a  virtual  violation  of  that  article  of  the  Constitution  which  give.g  com- 
pensation to  the  owner  of  property  taken  for  public  use. 

This  is  undoubtedly  the  rule  of  the  English  Law,  and  of  reason  and  jus- 
['299] 


§  TO.]  RIGHT  TO  OCCUPY  iii(;invAY.  321 

*  that  it  woiilj  ordinarily  Ijc  attended  with  far  more  damage  to 
the  remaining  land  to  have  a  railway  thuu  a  common  highway 
laid  across  it. 

♦  4.  ]f  the  rule  of  estimating  damages  according  to  the  money 
value  of  the  land  taken,  were  adopted,  there  would  Ix'  more  *  rea- 
son in  saying  the  public  would  therel)y  acipiire  the  right  to  use  it 
for  any  puri)ose.s  of  a  road,  which  any  future  improvement  *  might 
suggest.  And  this  is  the  view  which  seems  very  extensively  to 
prevail  in  this  conntry.  It  was  long  since  settled  that  *  the  land- 
owner was  not  entitled  to  any  additional  damage,  by  reason  of  any 
alteration  in  the  construction  of  the  highway .^  Or  in  applying  it 
to  the  use  of  a  turnpike  road  where  toll  was  paid,  this  being  but  a 

tice,  and  it  should  prevail  more  extensively  in  this  country.  The  American 
courts  seem  to  have  been  sometimes  led  astray  on  this  subject  by  the  fallacy 
that  a  railway  is  merely  an  improved  highway,  — which  for  many  purposes  it 
is,  but  not  for  all,  any  more  than  a  canal  is.  See  also  Ex  parte  Railroad  Co., 
2  Rich.  4:34. 

And  the  Xew  York  statute  giving  railways  the  right  to  pass  on  or  over 
turnpikes,  plank-roads,  rivers,  &c.,  by  restoring  such  ways,  rivers,  &c.  so  as 
not  unnecessarily  to  impair  their  usefulness,  was  construed  not  to  preclude  a 
] 'lank-road  from  recovering  damages  in  a  common  action  for  damages  under 
the  code,  the  company  having  entered  on  the  plank-road  without  causing 
damages  to  be  assessed  under  the  statute.  Ellicottville  &  Great  Valley  Plank- 
Road  Co.  V.  Buffalo  &  Pittsburg  Raihoad  Co..  20  Barb.  G44.  In  Williams  v. 
New  York  Central  Railroad  Co.,  IG  X.  Y.  97,  it  was  held  that  the  dedication 
of  land  to  the  use  of  the  public  as  a  highway  does  not  authorize  its  being 
taken  by  a  railway  company  for  a  track  without  compensation  to  the  owner 
of  the  fee,  although  done  with  the  consent  of  the  legislature  and  of  the  muni- 
cipal authorities.  It  has  been  sometimes  held  that  the  laying  out  and  oper- 
ating of  a  horse-railway  in  the  streets  of  a  city  is  not  an  additional  .servitude 
upon  the  soil,  for  which  the  owner  is  entitled  to  compensation.  Brooklyn 
Central  &  Jamaica  Railroad  Co.  r.  Brooklyn  City  Railroad  Co.,  .35  Barb.  -120. 
And  if  one  company  lay  its  track  across  the  track  of  another,  it  is  entitled  to 
no  compensation.     lb. 

-  Zimmerman  v.  Union  Canal  Co.,  1  Watts  &  S.  31G;  Mayor  v.  Randolph, 
4  Watts  &  S.  514;  Plate  .Alanufactnrors  r.  Meredith,  4  T.  R.  700;  .button  r. 
Clark,  G  Taunt.  29;  Bolton  i-.  Crowther,  2  B.  &  C.  703;  Rex  r.  Pa-ham.  8  B. 
&  C.  335;  II(Miry  v.  Alleghany  &  Pittsburgh  Bridge  Co,  8  Watts  &  S.  SG; 
Siirunk  v.  Schuylkill  Navigation  Co,  14  S.  &  11.  71;  Commonwealth  v. 
Fi.sher,  1  Penn.  4G7;  Hatch  v.  Vermont  Central  Railroad  Co.,  25  Vt.  49; 
Taylor  v.  St.  Louis,  14  Mo.  20;  Richardson  v.  Vermont  Central  Railroad  Co., 
25  Vt.  4G5;  Callendor  v.  Marsh,  1  Pick.  418;  Rounds  v.  Mumford,  2  R.  I. 
lol;  O'Connor  v.  Pittsburgh,  IS  Penn.  St.  187;  Plum  v.  Morris  Canal  & 
Bank  Co.,  2  Stockt.  256. 

VOL.  I. -21  [*300-*304] 


322  EMINENT    DOMAIN.  [PART   III. 

diiTcrcnt  mode  of  supporting  the  liighway,  of  which  the  land- 
owner had  no  just  cause  of  complaint,  since  it  did  not  mate- 
rially alter  the  use  of  the  land/''  And  the  same  rule  has  now 
heen  pretty  extensively  extended  to  improvements  in  erecting 
railways  along  the  streets  and  liighways.*  These  questions 
depend  much  upon  the  terms  of  the  charter  of  the  railway 
company. 

*  5.  And  as  it  is  confessedly  competent  for  the  legislature  to 
require  railways,  in  laying  their  track  along  the  highways,  to 
make  compensation  to  the  adjoining  land-owners  for  any  increased 
detriment,  or  to  be  liable  for  all  consequential  damage,^  and  as  it 
is  assuredly  just  and  equitable  to  do  so,  it  seems  desirable  it  should 
be  done.  And  in  those  states  and  countries  where  such  enter- 
prises have  become  so  far  matured  as  to  have  assumed  the  form  of 
a  settled  system,  it  more  commonly  is  done.  And  where  it  is  not, 
it  may  be  regarded  as  the  result  of  oversight  in  the  legislature. 
It  was  held  that  a  railway  is  liable  to  pay  damages  for  crossing  a 
turnpike  company's  road,  notwithstanding  the  legislature  gave  the 
right.6 

6.  Injunctions  in  equity  have  been  denied,  when  applied  for,  to 
restrain  railways  from  occupying  the  streets  of  cities  and  towns 
with  their  track,'^  (5)  by  consent  of  the  municipal  authority. 

3  Wright  V.  Carter,  3  Dutcher,  7G. 

4  riant  V.  Long  Island  Railroad  Co.,  10  Barb,  20.  But  see  Mifflin  v. 
llarrisburg,  Portsmouth,  Mountjoy  &  Lancaster  Railroad  Co.,  16  Penn.  St. 
182.  In  this  case  the  act  required  payment  of  damage  to  all  who  were  in- 
jured by  converting  a  turnpike  into  a  railway,  and  it  was  held  that  a  receipt 
in  full  to  the  turnpike  company  did  not  bar  the  claim  of  an  adjoining  land- 
owner for  additional  damages.  But  the  levelling  of  a  street,  preparatory  to 
laying  the  structure  of  a  railway,  is  not  an  obstruction.  McLaughlin  v. 
Charlotte  &  South  Carolina  Railroad  Co.,  5  Rich.  583;  Benedict  v.  Coit, 
3  Barb.  4od. 

6   Bradley  v.  New  York  &  New  Haven  Railroad  Co.,  21  Conn.  294. 

*  Seneca  Railroad  Co.  v.  Auburn  &  Rochester  Railroad  Co.,  .5  Hill,  170. 
And  the  amount  of  damage  is  immaterial.  The  maxim,  de  minimis,  does  not 
apply  to  cases  of  plain  violation  of  right.     Id.,  per  Cowkx,  J. 

'    Hamilton  v.  Xew  York  &  Harlem  Railroad  Co.,  9  Paige,  171;  Hentz  v. 

(h)    But   where   the   fee   is   in    the  Hun,  314;  Same  i-.  Same,  78  N.  Y.  423; 
abutting  owner,  the  use  of  the  street  Railway  Co.  v.  Lawrence,  38  Ohio  St. 
without    compensation    mny    be    re-  41.     And  see  Chicago  &  Pacific  Rail- 
strained  by  injunction.     Henderson  v.  road  Co.  v.  Francis,  70  111.  238. 
Xew  York   Central  Railroad   Co.,  17 

[*305] 


§  70.]  RIGHT  TO  OCCUPY  men  WAV.  323 

*  7.  But  in  one  wcll-considcrcd  casc,^  it  was  held,  tliat  where  a 
railway  company,  in  carrying  their  road  through  the  streets  of 

Loncf  Island  Railroad  Co.,  13  Barb.  G4G;  Chapman  v.  Albany  &  Schenectady 
Railroad  Qo.,  10  Barb.  360;  Lexington  &  Ohio  Railroad  Co.  v.  Apple{,'at(f, 
8  Dana,  280;  Drake  r.  Hudson  River  Railroad  Co.,  7  Barb.  508;  Wetuiore  /•. 
Story,  '-2  Barb.  411;  ^Milium  v.  Sharp,  15  Barb.  10:5.  But  where  the  railway 
is  constructed  without  the  legal  permission  of  the  municiixal  authorities  or  the 
legislature,  along  the  streets  of  a  populous  city,  it  becomes  a  nuisance,  and 
courts  of  equity  will  prohibit  its  continuance,  at  the  suit  of  individuals  who 
are  tax-payers  and  property  owners  on  the  streets  throu;jrh  which  tlie  rails  are 
laid.  In  Morris  &  Essex  Railroad  Co.  r.  Newark,  2  Stockt.  352,  the  right 
of  a  railway  company  to  occupy  the  streets  of  a  city  seems  to  have  been  ex- 
amined with  considerable  care,  but  the  cases  on  the  subject  are  not  examined 
very  extensively,  and  reliance  is  there  placed  on  the  case  of  AVilliams  v. 
New  York  Central  Railroad  Co.,  18  Barb.  222,  which  has  since  been  reversed. 
Supra,  note  1. 

There  is  one  distinction  here  adverted  to  that  is  not  named  in  other  cases, 
so  far  as  we  have  noticed,  viz. :  that  so  long  as  the  highway  or  street  continues 
to  be  used  as  such,  the  concurrent  use  of  it  by  a  railway  company  for  its 
track,  by  consent  of  the  legislature  and  the  municipal  authorities,  does  not 
entitle  the  owner  of  the  fee  to  additional  compensation.  But  if  it  is  appro- 
priated exclusively  to  the  use  of  the  railway,  the  owner  is  then,  by  constitu- 
tional provision,  entitled  to  compensation,  the  discontinuance  of  the  highway 
causing  a  reverter  of  the  fee  to  the  owner.  This  qualification  takes  away  the 
most  oifensive  feature  of  what  is  claimed,  in  some  of  the  cases,  —  the  right,  in 
the  legislature  and  the  municipal  authorities,  to  transmute  a  common  highway 
or  street  into  a  public  railway,  as  one  of  those  improvements  in  the  mode  of 
intercommunication  which  the  progress  of  events  had  brought  about,  and 
which  must  be  regarded  as  fairly  within  the  contemplation  of  the  parties 
at  the  time  of  the  original  taking.     But,  in  the  present  case,  there  being  no 


'  Nicholson  v.  New  York  &  New  Haven  Railroail  Co.,  22  Conn.  74.  If 
there  is  any  departure  from  general  priiici[>les,  in  this  case,  it  is  in  holding 
the  railway  company  justified  in  making  alterations  in  highways,  which 
cause  no  appreciable  injury  to  the  landholders,  and  this  certainly  commends 
itself  to  one's  sense  of  reason  and  justice.  It  may  be  questionable,  per- 
haps, whether  the  charge  of  the  judge,  who  tried  the  case  at  the  circuit,  was 
not  based  on  the  technical  rules  applicable  to  the  case,  viz.,  that  the  com- 
pany was,  at  all  events,  liable  for  nominal  damages,  and  for  all  actual  d.-ini- 
ages  in  addition.  But  where  a  railway  company,  by  consent  of  a  city,  under 
the  statutes,  raises  a  street  in  order  to  carry  the  road  under  it,  it  becomes 
primarily  liable  to  tlie  adjoining  land-owners  for  any  damage  to  their  estates 
thereby.  And  it  makes  no  difference  that  the  city  took  of  them  a  bon«i  of 
indemnity,  and  appointed  a  superintendent  to  take  care  of  the  public  interest.s 
in  tlie  execution  of  the  work.  Gardiner  i;.  Boston  &  Worcester  Railroad  Co., 
9  Cash.  1. 

[*30G] 


824  EMINENT   DOMAIN.  [PART   III. 

the  city  of  New  Haven,  found  it  necessary  to  carry  one  of  the 
streets  over  the  railway,  upon  a  high  bridge,  with  large  embank- 
ments at  each  end,  the  plaintiff  ownhig  the  land  upon  both  sides 
©f  the  street,  and  no  Compensation  being  assessed  to  him,  he 
*  might  recover  of  the  company  in  an  action  of  trespass  for  any 
appreciable  incidental  damages  occasioned  by  thus  constructing 
their  road,  and  the  consequent  alteration  of  the  highway  or  street. 
And  as  the  company,  in  thus  constructing  their  road,  acted  under 
the  authority  of  the  legislature,  they  were,  prma/acee,  not  to  be 
regarded  as  trespassers,  but  where  they  caused  any  appreciable 
damage  to  the  land-owners  along  the  line  of  the  road,  they  were 
liable  in  this  form  of  action.  The  court  in  this  case,  Hinman,  J., 
assumed  the  distinct  ground,  that  the  railway,  by  laying  their 
track  upon  the  plaintiff's  land,  which  was  before  subject  to  the 
servitude  of  the  highway,  or  street,  would  become  liable  "  for  such 
entry  "  upon  the  land.  "  In  such  case,"  says  the  learned  judge, 
"  the  subjecting  the  plaintiff 's  property  to  an  additional  servitude, 
is  an  infringement  of  his  right  to  it,  and  is  therefore  an  injury  and 
damage  to  him.  It  would  be  a  taking  of  the  property  of  the 
plaintiff,  without  first  making  compensation."  And  the  same 
court,  in  a  later  case,^  held  that  the  location  of  a  railway  upon  a 
public  highway  is  the  imposition  of  a  new  servitude  upon  the 
land,  and  the  owner  of  the  fee  is  entitled  to  compensation  for  the 

necessity  for  the  use  of  the  street,  and  no  express  consent  of  the  municipal 
authorities  for  such  use,  it  was  lield  that  no  right  to  such  use  could  be  im- 
plied, from  the  grant  of  the  charter,  for  a  road  between  certain  termini,  which 
might  be  built  by  a  route  less  injurious  to  the  public;  and  that  the  consent  of 
the  municipal  authorities  was  not  to  be  infen-ed  from  non-interference  until 
the  track  had  been  laid  and  used  for  several  years,  and  large  suras  of  money 
thus  invested  and  important  interests  accrued;  and  the  injunction  restraining 
the  authorities  from  removing  tlie  track  was  dissolved.  The  extent  to  which 
a  railway  company  must  obstruct  tlie  higliway,  at  an  intersection,  to  create  an  ' 
actionable  impediment  to  the  public  travel,  is  extensively  considered  in  the 
case  of  Great  AVestern  Railroad  Co.  v.  Decatur,  33  111.  381.  It  was  there 
decided,  that  to  leave  twelve  feet  of  the  highway  unobstructed,  so  that 
steady  team  might  pass  in  safety,  was  not  enough.  The  obstruction  of  lii'^ 
public  right  of  way  in  a  river,  whether  navigable  in  the  old  sense  of  being 
a  tidal  stream,  or  not,  is  a  public  nuisance,  for  which  an  injunction  will  be 
granted  at  the  suit  of  one  suifering  special  damage,  or  of  the  Attorney- 
General.  Attorney-General  r.  Lonsdale,  17  W.  B..  219;  s.  c.  Law  Rep.  7  Eq.j 
377. 

3   Imlay  v.  Union  Branch  Railroad  Co  ,  20  Conn.  249. 
[*307] 


§  70.]  RIGHT   TO    OCCUPY    HIGHWAY.  325 

(lamafre  caused  thereby.  And  this  inchidcs  all  incidental  dama^'c 
to  land  adjoining,  and  which  belongs  to  the  same  proiirietor.  \n 
a  case  in  Pennsylvania,^''  it  is  held  that  the  legislature  may  au- 
thorize the  construction  of  a  railway  on  a  street,  or  public  highway, 
and  the  inconvenience  thereby  incurred  by  the  citizens  must  be 
borne  for  the  sake  of  the  puljlic  good.  But  where  this  is  claimed 
by  construction  and  inference,  all  doubts  are  to  be  solved  against 
tlie  company.  And  where,  by  the  act  of  incorporation  of  a 
nnuiicipality,  it  was  provided  that  the  "  streets,  lanes,  and 
alleys  thereof"  should  forever  be  and  remain  public  highways,  it 
was  held  that  the  municipal  authorities  could  not  authorize  the 
construction  of  a  railway  thereon.^''  Jjut  where  the  state  conveys 
to  a  city  the  title  of  a  common,  reserved  in  the  grant  of  the  town- 
ship for  a  "  comuKjn  pasture,"  subject  to  the  easement  of  the  lot- 
holders,  of  common  of  pasturage,  *  it  was  held  that  tlic  city  might 
lawfully  grant  a  jjortion  of  the  same  to  a  railway  company  for 
the  purpose-  of  constructing  their  road.^^ 

10  Commonwealth  v.  Erie  &  Northeast  Railroad  Co.,  27  Tenn.  St.  339.  See 
also  Alleghany  r.  Ohio  &  Pennsylvania  llailroad  Co.,  26  Penu.  St.  355. 

"  Alleghany  v.  Ohio  &  Pennsylvania  Railroad  Co.,  26  Penu.  St.  355.  Rut 
the  grant  of  fifty  feet  through  such  a  common,  in  a  densely  populated  city, 
will  convey  only  the  right  to  make  a  road  thereon,  and  to  receive  and  dis- 
charge passengers  and  freight,  and  will  not  give  the  right  to  erect  depots, 
car-houses,  or  other  structures,  for  the  convenience  or  business  of  the  road;  or 
to  permit  cars  and  locomotives  to  remain  on  the  track  longer  than  necessary 
to  receive  and  discharge  freight  and  passengers.     lb. 

And  it  might  have  been  regarded  as  the  settled  doctrine  of  the  New  York 
courts,  until  the  case  of  Williams  v.  New  York  Central  Railroad  Co.,  .•'ujira, 
note  1,  that  the  owner  of  the  fee  of  land  dedicated  to  the  use  of  a  highway 
or  street,  and  which  the  legislature  devote  to  the  use  of  a  railway,  had  no 
claim  on  the  company  for  compensation,  by  reason  of  the  additional  servi- 
tude thereby  imposed  on  the  land.  Corey  r.  Buffalo,  Corning,  &  New  York 
Pvailroad  Co.,  23  Barb.  482;  Radcliff  v.  Brooklyn,  4  Comst.  195;  Gould  v. 
Hudson  River  Railroad  Co.,  2  Seld.  522.  But  this  is  now  otherwise  in  New 
York. 

In  1857,  the  subject  was  elaborately  examineil  by  Vioe-Chancillcr  Kinhkh- 
SLKY,  in  Thompson  v.  West  Somerset  Railway  Co.,  29  Law  T.  7,  in  relation 
to  the  cesiuis  que  trust  of  a  pier,  over  which  the  act  of  parliament,  in  express 
terms,  authorized  the  company  to  construct  a  road,  which  the  company  had 
constructed  without  proceeding  under  the  statutes  to  appraise  compensation, 
and  the  court  held  them  trespassers,  and  an  injunction  was  granted  until  the 
company  made  compensation. 

The  subject  has  been  considered  in  Indiana  also,  and  although  the  author- 

[*308J 


326  EMINENT   DOMAIN.  [PART   III. 

*  8.  Since  the  second  edition  of  this  work,  the  decisions  have 
been  considerably  numerous  in  regard  to  the  right  of  railways 
to  occupy  the  streets  and  highways,  without  making  additional 
compensation  to  the  owners  of  the  fee  of  the  lands  across  which 
the  same  are  laid.  The  principles  involved  are  much  the  same  as 
have  been  already  stated  ;  but  it  will  be  important  to  the  pro- 
fession to  know  them  in  detail. 

In  a  somewhat  recent  case  ^^  it  was  decided,  that  the  occupa- 
tion of  the  highway  by  the  track  of  a  railway  company  is  the 
imposition  of  an  additional  servitude,  and  is  the  taking  of  the 
property  of  the  owner  of  the  fee  in  the  lands  over  which  the  same 
is  laid,  within  those  constitutional  prohibitions  requiring  compen- 
sation where  private  property  is  taken  for  public  use ;  and  that 

ities  are  not  much  reviewed,  the  concUisions  of  the  court  conform  to  reason 
and  justice.  A  city  ordinance  authorized  the  construction  of  a  railway  on 
either  of  two  streets,  through  the  corporate  limits,  under  suitable  restrictions 
as  to  grade.  It  was  held  that  the  ordinance  did  not  authorize  the  company 
substantially  to  alter  the  grade  of  the  street,  and  that,  besides  the  right  of 
"way,  which  the  public  have  in  a  street,  there  is  a  private  right  which  passes 
to  a  purchaser  of  a  lot  on  the  street,  as  appurtenant  to  it,  which  he  holds  by 
an  implied  covenant  that  the  street  in  front  of  his  lot  shall  forever  be  kept 
open  for  his  enjoyment,  for  any  obstruction  whereof  to  his  injury  he  may 
maintain  an  action.  In  Tate  v.  Ohio  &  Mississippi  Railroad  Co.,  7  Ind.  149, 
it  was  held  that  the  i-ight  which  the  owner  of  a  lot  has  to  the  enjoyment  of  an 
adjoining  street  is  part  of  his  property,  and  can  be  taken  for  public  use,  only 
on  just  compensation  being  made,  pursuant  to  the  constitution.  And  in 
Haynes  v.  Thomas,  7  Ind.  38,  where  the  cases  are  more  fully  examined,  the 
same  general  propositions  are  maintained.  It  is  there  said,  the  right  of  the 
owner  of  a  town  lot  abutting  on  a  street,  to  use  the  street,  is  as  much  prop- 
erty as  the  lot  itself,  and  the  legislature  has  as  little  power  to  take  away  one 
as  the  other.  Although  on  principle,  the  right  as  against  a  railway  company 
should  be  placed  on  the  basis  of  its  being  an  additional  and  more  oppressive 
burden  and  servitude  on  the  land,  which  entitles  the  land-owner  to  additional 
compensation,  there  can  be,  in  our  judgment,  no  manner  of  question  of  the 
general  soundness  of  the  above  decisions.  The  last  named  case,  being  that 
of  the  voluntary  dedication  of  property  by  the  owner,  for  the  purposes  of  a 
street  and  highway,  well  illustrates  the  injustice  of  wresting  such  use  to  the 
purposes  of  a  railway,  so  much  more  burdensome  and  injurious.  Thus  the 
general  current  of  American  law  on  this  subject  may  now  be  regarded  as  the 
same  with  the  English  rule  already  stated.  Protzman  i'.  Indianapolis  &  Cin- 
cinnati Railroad  Co.,  9  Ind.  467;  Evansville  &  Crawfordsville  Railroad  Co.  v. 
Duke,  9  Ind.  433.  See  also  Salisbury  v.  Great  Northern  Railway  Co.,  5  C.  B. 
N.  s.  174;  s.  c  5  Jur.  n.  s.  70. 

^-  Craig  r.  Rochester  City  &  Brighton  Railroad  Co.,  39  Barb.  494. 

[*309] 


§  7G.]  RIGHT   TO    OCCUPY    HIGHWAY.  3'J7 

conscquoii'tly  the  company  can  acquire  no  right  to  siicli  use,  inuler 
lei»ishitive  and  municipal  license,  without  compensation,  and  that 
there  is  no  difference  in  tliis  respect  hetween  railways  ojjerated  by 
steaui  and  by  other  motive  })0wer.  ]]ut  in  another  case  it  was 
held,  that  any  legislative  act  empowering  a  railway  company  to 
occupy  certain  streets  and  avenues  in  the  city  of  New  York,  should 
not  be  construed  as  not  intended  to  give  such  permission  without 
compensation.^'^  In  the  main,  this  case  assumes  the  0])posite 
ground  from  that  declared  by  Craig  v.  Rochester  City  <fe  Br. 
Railway  Co.'^  The  question  came  up  for  revision  in  the  Court 
of  Api)eaLs,  in  the  case  of  the  People  v.  Kerr,^*  where  the  court 
maintained  *  the  proposition  that  the  construction  of  a  city  rail- 
way upon  the  surface  of  the  streets  and  without  change  of  grade, 
is  an  appropriation  of  the  land  to  some  extent  to  public  use,  but 
the  court  held  that  the  original  owner  of  the  fee  of  the  streets  in 
the  city  of  New  York  had  no  such  remaining  interest  as  to  justify 
any  demand  for  compensation  on  his  part,  for  reasons  before 
stated.  ^'^ 

The  same  distinction,  as  to  the  right  of  the  owner  of  the  fee 
to  demand  compensation,  between  the  use  of  the  streets  of  towns 
and  cities  for  the  track  of  railways,  and  of  highways  in  the  country, 
is  observed  in  many  of  the  other  states.  Thus  in  two  cases  in 
Iowa  this  distinction  is  maintained.^^ 

The  question  of  the  location  of  railways  across  or  along  the 
streets  and  highways  of  cities  and  towns  as  well  as  in  the  rural 
districts,  is  extensively  discussed  in  a  case  in  Maine,  which  came 
more  than  once  before  the  courts.^"  But  most  of  the  ])ro])0.sitions 
liere  maintained  are  more  or  less  affected  by  statutory  jjrovisions. 
It  is  here  declared  (which  indeed  is  found  in  many  other  cases, 
and  is  sufhciently  obvious  in  itself)  that  statutes  regulating  the 
operation  of  railways  are  to  be  considered  as  affecting  only  the 
general  police  of  the  state,  and  as  applying  equally  to  existing  and 

"  People  V.  Kerr,  .37  Barb.  357. 

"  27  X.  Y.  188.  Tliis  case  must  bo  regarded  as  settling  the  law  in  Xc-w 
York,  iiotwithstandhig  some  conflict  in  the  decisions  of  tl)e  different  supreme 
courts. 

15  Supra,  §  70,  pi.  13. 

"  Milburn  v.  Cedar  Rapids,  Chicago,  Towa,  &  Xebraska  Railroad  Co.,  11 
Iowa,  246;  Ilaight  v.  Keokuk,  4  Iowa,  l!)f). 

"  Veazie  v.  :Mayo,  45  Me.  5G0 ;  s.  c.  49  Me.  15G. 

[*310] 


328  EMINENT   DOMAIN.  [PART  III, 

future  railways ;  but  even  matters  of  police  affecting  the  construc- 
tion of  railways  cannot  reasonably  be  construed  as  having  a  retro- 
active operation,  so  as  to  require  a  railway  company  to  undo  and 
do  over  again  tlie  work  of  construction. 

The  cases  decided  in  Oliio,^^  in  regard  to  the  use  of  highways 
*  and  streets  for  the  purpose  of  street  railways,  do  not  appear  to 
be  altogether  decisive  of  the  principle  involved.  It  seems  to  be  there 
regarded,  so  far  as  a  street  or  highway  can  be  appropriated  for 
such  use,  without  appreciable  damage  to  the  owner  of  the  land 
adjoining,  that  he  is  not  entitled  to  any  additional  compensation, 
but  that  if  from  change  of  grade  or  any  other  cause,  there  is  any 
essential  damage  inflicted  upon  the  abutters,  by  obstructing  access 
to  lands  or  buildings,  or  in  any  other  respect,  more  than  would 
have  resulted  from  the  use  in  the  ordinary  mode  for  a  highway, 
the  owner  of  the  fee  will  be  entitled  to  demand  additional  com- 
pensation. 

But  it  is  obvious  that  the  difficulty,  in  point  of  principle,  lies 
somewhat  deeper.  For  although  the  rule  there  laid  down,  in  point 
of  equity,  may  be  entirely  just  and  reasonable,  it  must  always 
prove  embarrassing  in  j)ractice,  and  compel  an  appraisement  in 
each  particular  case,  in  order  to  insure  security.  The  true  prin- 
ciple undoubtedly  is,  that  if  the  use  is  substantially  the  same  as 
that  of  an  ordinary  highway,  no  additional  compensation  can  be 
required  ;  but  if  the  use  is  new,  and  distinct  from  that  of  an 
ordinary  highway,  the  owner  of  the  fee  is  entitled  to  additional 
compensation  in  every  case,  without  reference  to  special  damages ; 
so  that  the  question  turns  upon  the  point  whether  the  use  of  a 
street  or  highway  for  the  support  of  a  railway  track,  is  using  it 
for  a  highway  only.  As  such  use  of  the  street  for  street  railways 
is  of  necessity  solely  under  municij)al  control,  and  is  a  use  to 
which  the  munici])al  authorities  might  themselves  devote  tiie 
street  by  constructing  the  tracks  at  their  own  expense,  allowing 
all  travellers  to  use  them  with  every  species  of  carriage,  it  seemed 
natural  to  conclude  that  it  could  not  be  regarded  as  an  additional 
servitude ;  but  the  current  of  authority  seems  to  be  setting  in  the 
opposite  direction. 

The  present  inclination  seems  to  be  to  make  no  distinction 

'8  Crawford  r.  Dolawne,  7  Ohio  St,  450;  Cincinnati  &  Spring  Grove  Avenue 
Railroad  Co.  v.  Cumminsville,  li  Ohio  St.  523. 
[*311] 


§  70.]  RIGHT    TO    OCCUPY    HIGHWAY    OR    STREHT.  329 

between  the  use  of  streets  liy  steam  and  street  railways,  and  to 
require  compensation  in  both  cases  alike. ^^  (c) 

There  are  some  few  cases  in  dil'lcrent  states  wliich  still  adhere 
*  to  the  doctrine  that  the  laying  of  a  railway  track  for  the  j)as- 
sage  of  street  railways,  at  the  ordinary  grade  of  the  highway,  is 
not  an  appropriation  of  any  estate  in  the  land  to  public  use  be- 
yond that  already  ai)propriated  by  devoting  the  land  to  the  use  of 
a  highway  or  street.'-^*'  And  there  is  an  elaborate  opinion  of  Mr. 
Justice  Ellsworth,  of  the  Connecticut  Supreme  Court,^!  where 
the  same  views  are  maintained,  and,  as  it  seems  to  us,  with 
more  plausibility  than  any  case  we  have  found  in  the  opposite 
direction. 

The  cxi)lanation  of  the  singular  .vacillation  of  the  courts  upon 
the  subject  of  railways  being  located  on  the  highways,  and 
whether  the  owner  of  the  fee  was  thereby  entitled  to  additional 
compensation,  seems  to  arise  in  the  following  manner.  At  the 
first  it  was  so  common  to  designate  steam  railways  as  only  an 
improved  highway  that  the  courts,  almost  universally  in  this 
coinitry,  held  the  owner  of  the  fee  entitled  to  no  additional  com- 
j)cnsation  by  reason  of  such  railways  being  laid  upon  the  high- 
way, either  across  or  along  their  route.  But  this  view,  upon  more 
careful  consideration,  being  found  untenable,  the  retrocession  of 
the  courts  from  their  former  false  assumj)tion  naturally  gave 
them  an  unnatural  impulse  in  the  opposite  direction,  l»y  which  the 
conclusion  was  arrived  at,  that  all  railways  must  C(|ually  lie  an 
additional  burden  upon  the  fee.  Whetlier  the  ju-oper  distinction 
between  street  railways  and  those  occupying  a  distinct  route  and 
transacting  mainly  a  distinct  business  will  ever  be  clearly  delhied 
is  perhaps  questionable. 

^'  Ford  V.  Chicago  &  Xorthwestern  Railway  Co.,  14  Wis.  609;  Janesville 
r.  Milwaukee  &  ^lississippi  Railroad  Co.,  7  Wis.  181;  Pomeroy  i'.  Chicago  & 
Milwaukee  Railroad  Co.,  K!  Wis.  610;  Warren  v.  State,  5  Dutcher,  '.)D3;  Vea- 
zie  r.  Penobscot  Railroad  Co.,  49  ^le.  119.  The  same  principle  is  maintained 
in  Brown  v.  Duplessis,  11  La.  An.  842.  But  by  statute  in  that  state  the  cities 
niay  sell  the  use  of  ti>e  streets  for  city  passenger  railway  purposes. 

'-'"  New  Albany  &  Salem  Railroad  Co.  v.  O'Daily,  12  Ind.  551. 

-*  Elliott  V.  Fairhaven  &  Westville  Railroad  Co.,  32  Conu.  579. 

((•)  But  in  Stango  v.  Dubuque  pany  was  liable  for  six'cial  injury  to 
Street  Railway  Co.,  54  Iowa,  609,  it  adjoining  property  from  the  use  of 
was  held  that  a  street  railway  com-     steam  in  the  streets. 

[•01:2J 


330  EMINENT    DOMAIN.  [PART  III.     I 

It  seems  very  certain  tliat  the  grant  to  a  railway  company  of 
the  right  to  pass  along  the  streets  of  a  city  or  town  can  confer  I 
no  right  to  erect  stations  and  other  permanent  structures  in  the 
streets  and  thereby  render  them  unfit  for  use  as  streets.^  la 
such  cases  the  adjoining  land-owners  will  be  entitled  to  redress 
by  way  of  damages,  whether  they  own  to  the  middle  line  of  the 
street  or  only  to  the  margin. 22 

But  the  owner  of  an  unimproved  building  lot  upon  a  street 
cannot  be  regarded  as  suffering  any  such  injury  from  the  location 
of  a  railway  along  the  public  street  adjoining  as  will  entitle  him 
to  an  injunction.^     And  the  fact  that  the  defendant  owned  the    \ 
*  land  across  which  a  railway  track  is  laid,  and  had  never  released    j 
the  right  of  way  to  the  railway,  is  no  ground  of  defence  for  pla- 
cing obstructions  upon  the  track. 2*     Nor  will  the  breach  of  con- 
tract by  which  the  company  secured  the  right  of  way   give  any    ( 
color  of  justification  to  the  land-owner   for   placing    any    such 
obstructions  on  the  track  .^^ 

Some  recent  cases  affecting  the  location  of  street  railways  in 
the  city  of  New  York  may  be  of  interest  to  the  profession,  and 
we  have  therefore  inserted  in  the  note  below  ^^  the  leading  points    > 
decided.  (^)  | 

2^  Lackland  v.  North  Missouri  Railroad  Co.,  31  Mo.  180. 

23  Zabriskie  v.  Jersey  City  &  Bergen  Railroad  Co.,  '2  Beasley,  314. 

2*  State  V.  Hessenkamp,  17  Iowa,  25. 

25  In  Sixth  Avenue  Railroad  Co.  v.  Kerr,  45  Baib.  138,  it  was  held  that 
where  a  railroad  is  laid  in  a  public  street,  on  permission  to  use  a  portion  of 
the  street  for  that  purpose,  the  company  does  not  acquire  the  same  unqualified 

(d)  Somewhat    analogous    to    the  ton  Beach  Railroad  Co.,  20  Hun,  201. 

questions  relating  to  the  occupation  But  that  an  owner  of  lands  merely 

of   highways  are  the  questions  relat-  cornering  on  a  park  has  no  easement 

ing  to   the  occupation   of  commons,  entitling  him  to  complain  of  the  use 

parks,  and  public  squares.     Thus  it  of  the  park  for  a  station.     Greene  v. 

has  been  held  that  abutting  owners  New  York  Central  &  Hudson  River 

have   such   an  easement  in  a  public  Railroad  Co.,  Go  How.  Pr.  154.     In     1 

square  as  will  entitle  them  to  enjoin  Jacksonville  v.  Jacksonville  Railway     ' 

its  use  for  railroad  purposes  without  Co.,  G7  111.  540,  a  company  was  per- 

corapensation.     Pratt  v.  Buffalo  City  petually  enjoined   at  suit  of  a  city     , 

Railway  Co.,  19  Hun,  30.     And  that  from    laying    a    road   over   a  public     | 

a  park  acquired  for  public  use  under  square  which  had  been  dedicated  to 

statute  cannot  be  taken  for  the  pur-  the  city  and  around  which  lots  had 

poses  of  a  railway  without  legislative  been  sold  and  improved  in  faith  of  its 

authority.     In  re  New  York  &  Brigh-  continuance. 

[*313] 


§77.] 


CONFLICTING    UIGIITS   IN    DIFFERENT   COMPANIES. 


331 


♦SECTION  XV. 

Conflicting  liights  in  different  Companies. 


1.  Company  subservient  to  anollicr  can 
take  of  tlie  othor  land  enotigli  only 
for  its  track. 


Where  no  apparent  conflict  in  route, 
company  whose  road  is  first  located 
acquires  superior  right. 


§  77.  1.  Where  the  defendants'  statutory  powers  were  subjcet  to 
thuse  conferred  upon  the  i)lainti£fs,  whose  charter  was  first  granted, 
providing  that  the  plaintiffs'  powers  shall  not  be  so  exercised  as  to 
prevent  the  defendants  from  compulsorily  taking  and  using  land 
sufticient  to  construct  their  branch  lines,  not  exceeding  twenty-two 
feet  in  width,  at  the  level  of  the  rails,  the  plaintiffs  having  first 
purchased,  with  the  consent  of  the  owner,  lands  which  the  defend- 
ants proposed  to  take,  beyond  the  twenty-two  feet,  for  purposes  of 
building  stations,  &c.,  it  was  held,  that  the  plaintiffs,  having  occu- 
pied the  ground  first,  were  entitled  to  hold  so  much  as  was  not 
actually  necessary  for  the  formation  of  defendants'  railway.*  (a) 

title  and  right  of  disposition  to  the  land  occupied  which  individuals  have  in 
their  lands;  that  the  only  exclusive  power  conferred  by  such  grants  is  that  of 
using  railway  carriages  in  the  same  manner  as  the  grant  of  a  stage  line  con- 
fers, for  the  time  being,  —  the  grant  of  a  monopoly  of  using  such  stages;  that 
after  a  railway  company  has  obtained  permission  from  the  common  council  to 
lay  a  railway  through  certain  streets,  and  such  grant  is  subsequently  confirmed 
by  the  legislature,  the  legislature  may  grant  similar  privileges  to  anotlier  com- 
pany, and  authorize  the  latter  to  run  upon,  intersect,  or  use  any  portion  of 
the  tracks  already  laid,  on  condition  of  making  compensation,  the  grantees  of 
such  grants  holding  for  the  public  use ;  that  tlie  right  to  grant  a  cro-ssing  of  the 
road  necessarily  involves  a  right  to  pass  over  a  larger  portion  of  such  road, 
when  tiie  legislature  so  directs;  that  a  railway  corporation,  by  acquiring  tlie 
right  to  construct  a  road  across  a  highway,  and  obtaining  title  to  the  land  fur 
iLs  roadbed,  does  not  destroy  or  imjiair  the  public  casement,  but  that  the  per- 
fect and  unqualified  right  of  every  citizen  to  pass  over  the  road  at  that  point 
remains  the  same  as  before.  The  cases  of  People  i".  Third  Avenue  Kailroatl 
Co.  45  Barb.  63;  People  v.  New  York  &  Harlem  Railroad  Co.,  45  Barb.  73, 
decide  some  further  points  as  to  extensions,  double  tracks,  &c. 

^  Lancaster  &  Carlisle  Railroad  Co.  v.  Maryport  &  Carli.sle  Railroad  Co., 
4  Kailw.  Cas.  504;  wfra,  §  105. 

(a)  Where  two  roads  proceed  be-  other,    may   properly   be    authorized, 

tween    different    points    and   regions  Lake    Shore    &    Michigan    Southern 

they  are  for  a  different  use,  so  that  in  Railroad  Co.   c.    Chicago  &   Western 

Illinois  condemnation  of  a  part  of  the  Indiana  Railroad  Co.,  97  111.  500. 

propertv  of  one,  for  the  use  of    the 

[•321] 


332 


EMINENT   DOMAIN. 


[part   III. 


2.  "Where  two  railway  companies  were  incorporated  to  com- 
plete independent  lines  across  the  state,  only  the  termini  of  either 
being  prescribed,  there  being  no  apparent  or  necessary  conflict  of 
the  routes,  it  was  held,  that  the  company  which  first  surveyed  and 
adopted  a  route,  and  filed  the  survey  in  the  proper  office,  were  en- 
titled to  hold  it,  without  reference  to  the  date  of  the  charters,  both 
being  granted  at  the  same  session  of  the  legislature.^ 


*  SECTION  XVI. 


Right  to  Build  over  Navigable  Waters. 


1.  Legislature  may  grant  right  to  build 

over  navigable  waters. 

2.  Riparian   proprietor    along  navigable 

water  owns  only  to  the  water. 
n.  (a)  But  quare  if  this  does  not  de- 
jiend  on  the  local  law. 
3    His  rights  in  the  water  subservient  to 
public  use. 

4.  Legislative    grant    valid,    subject    to 

paramount  power  of  Congress. 

5.  State  interest  in  flats  where  tide  ebbs 

and  flows. 

6.  Rights  of  littoral  proprietors  in  Mas- 

sachusetts. 

7.  Grant  to  railway  company  of  shipping 

place  on  navigable  river. 


8.  Principal  grant  carries  its  incidents. 

9.  Grant  of  right  to  construct  a  harbor 

includes  right  to  make  necessary 

erections. 
10,  11.  Rivers  in  fact  navigable,  naviga^ 

ble  in  contemplation  of  law. 
12.  Land    being   cut   off  from   wharves 

deemed  "injuriously  affected." 
1-3.  Infringement  of  paramount  rights  of 

Congress  creates  a  nuisance. 

15.  Obstruction,  if  illegal,  per  se  a,  nui- 

sance. 

16.  Public  reservations  applied  to  use  of 

railway. 


§  78.  1.  In  regard  to  navigable  streams,  it  seems  to  be  a  con- 
ceded point,  that  the  owner  of  land  adjoining  the  stream  has  no 


2  Morris  &  Essex  Railroad  Co.  v.  Blair.  1  Stockt.  G3.i.  A  decision  similar  in 
principle  was  made  in  (lawtliern  v.  Stockport,  Disley,  &  W.  Railway  Co.,  29 
Law  T.  308,  where  the  railway  first  chartered,  laid  out.  and  partly  built,  had 
been  lying  by  some  time,  and  the  Master  of  the  Rolls  held  a  subsequent  rail- 
way not  precluded  from  interfering  with  its  contemplated  route.  A  railway 
may  be  laid  across  the  line  of  another  company,  but  the  latter  will  be  entitled 
to  damages,  although  the  former  is  laid  on  piles  over  tide-water.  Grand 
Junction  Railroad  &  Depot  Co.  v.  County  Commissioners,  14  Gray,  553.  And 
it  is  here  said,  where  two  companies  file  a  joint  location,  they  are  jointly 
liable  for  damages  to  land-owners;  and  a  location  may  refer  to  apian  so  as 
to  make  that  part  of  the  location. 
[*322] 


§78.] 


ERECTIONS    OVER   NAVKJAIJLE    WATi:US. 


333 


property  in  the  bed  of  llic  stream,  and  hence  that  the  legislature 
in  England  may  give  permission  to  a  railway  comiiany  tu  so  con- 
struct their  road  as  to  interfere  with  and  alter  the  bed  of  such  a 
stream,  to  the  damage  of  any  owner  of  adjoining  land,  in  regard 
to  fiowage,  or  otherwise,  even  to  the  hindrance  of  accustomed 
navigation,  without  comi)cnsation  ;  and  that  the  railway  company, 
in  constructing  their  road  within  the  provisions  of  the  act,  do  not 
Ijceome  liable  to  an  action  for  damages  to  any  such  jiroprietor  of 
adjoining  land.^ 

*  '2.  The  same  point  has  been  often  decided  in  this  country .^  (a^ 
Whether  waters  are  navigable   or  not,  is  determined  by  the  ebb 

1  Abraliam  v.  Great  Northern  Railway  Co.,  IG  Q.  B.  5SG;  s.  c.  5  Eng.  L. 
&  Eq.  258.  "  The  legislature  might  authorize  defeudauts  to  construct  a 
causeway  or  bridge  across  navigable  or  tide-waters,  altliough  the  navigation 
might  be  thereby  impaired."  And  in  liegina  v.  ]\Iusson,  8  Ellis  &  B.  900; 
8.  c.  30  Law  T.  272,  it  is  held  that  a  pier  built  into  the  sea  is  not  liable 
to  the  parish  rates,  except  so  far  as  it  is  above  high-water  mark.  See 
Parker  v.  Cutler  Milldam  Co.,  20  Me.  353;  opinion  of  court  in  Brown  r. 
Cliadbourne,  31  I^Ie.  9;  Shki'LEY,  C  J.,  in  Rogers  t'.  Kennebec  &  Portland 
Railroad  Co.,  35  Me.  319.  So,  too,  to  construct  a  road  across  the  basins  of  a 
water  company  to  their  injury,  on  making  compensation.  Boston  Water 
Power  Co.  v.  Boston  &  Worcester  Railroad  Co.,  23  Pick.  300;  8.  c.  1  Am. 
Railw.  Cas.  298.  The  grant  of  power  to  construct  a  railway  between  two 
points  carries  authority  to  cross  navigable  waters,  if  that  is  reasonably  neces- 
sary, in  the  construction  of  the  works.  Fall  River  Iron  Works  v.  Old  Colony 
&  Fall  River  Railroad  Co.,  5  Allen,  221. 

2  Gould  V.  Hudson  River  Railroad  Co.,  G  X.  Y.  522;  infra,  §  206. 


(a)  So  it  is  now  held  that  whether 
on  navigable  waters,  above  the  ebb 
and  flow  of  the  tide,  the  riparian  pro- 
jirietor  has  a  right  to  the  shore  and 
the  bed  of  the  river,  depends  on  the 
law  of  the  state  where  the  land  is  sit- 
uated. Barney  r.  Keokuk,  94  U.S.  324. 
ScmNe  that  the  true  rule,  however, 
since  all  waters  in  fact  navigable  have 
boen  held  (see  infra,  note  (b))  nav- 
igable in  contemplation  of  law,  would 
hold  proprietorship  to  be  in  the  state, 
lb.  See  further,  St.  Paul  &  Pacific 
Railroad  Co.  r.  Schurmeir,  7  Wall. 
272.  But  see  Houghton  v.  Railroad 
Co.,  47  Iowa,  370,  and  Chicago,  Rock 


Island,  &  Pacific  Railroad  Co.,  11  Am. 
&  Eng.  Railw.  Cas.  499,  which  hold 
that  the  riparian  proprietor  owns  to 
high-water  mark.  As  to  the  rights  of 
riparian  proprietors  under  the  statutes 
of  Iowa,  see  Barney  c.  Keokuk,  91 
U.  S.  324;  Davenport  &  Northwestern 
Railway  Co.  r.  R.Miwick,  102  U.  S. 
ISO;  Renwick  v.  Davenport  &  North- 
western Railway  Co.,  49  Iowa,  GGl. 
As  to  the  question  of  ownership  in 
general,  see  Ormorod  r.  New  York, 
West  Shore,  &  Buffalo  Railroad  Co., 
13  Fed.  Rep.  370;  Die  Iriohs  t\  North- 
western Union  Railway  Co.,  42  Wi-;. 
248. 

[•323] 


334  EMINENT   DOMAIN.  [PART   III. 

and  flow  of  the  tide.  And  although  streams,  ahove  that  point, 
are  navigable  often  for  steamboats  and  lesser  water  craft,  and 
arc  public  highways  for  such  purposes,  and  often  become  high- 
ways by  prescription  for  purposes  of  inferior  navigation,  as  float- 
ing timber  and  wood,  and  possibly  they  may  be  regarded  as  sucli 
even  independent  of  such  prescription  ;  yet  the  ownership  of  the 
riparian  proprietor  to  the  middle  of  the  stream,  ad  medium  jilum 
aquce,  is  not  excluded,  except  in  tide-waters,^  and  such  large 
rivers,  in  this  country,  as  by  authority  of  Congress  or  common 
consent  have  acquired  or  assumed  the  character  of  navigable 
waters,  although  not  coming  strictly  within  the  common-law 
definition.*  (6) 

8  1  Hargrave's  Law  Tracts,  12,  13,  85;  Angell  Tide- "Waters,  71-174. 

*  Cliamplaiii  &  St.  Lawrence  Railroad  Co.  v.  Valentine,  19  Barb.  481. 
But  in  Bell  v.  Gongh,  3  Zab.  024,  it  is  held  that  if  the  riparian  owner  has 
made  improvements  on  the  land  below  high  water,  so  as  to  have  reclaimed  it, 
the  part  so  reclaimed  belongs  to  him,  and  cannot  be  granted  by  the  state. 
And  three  of  the  nine  judges  in  the  appellate  court  held  that  riparian  owners 
have  a  vested  right  in  the  benefits  and  advantages  arising  from  their  adjoining 
the  water,  of  which  they  cannot  be  deprived  without  compensation.  But  this 
case,  although  exhibiting  great  research  and  ability,  is  not  altogether  in 
accordance  with  the  general  current  of  the  decisions  on  the  subject,  and 
is  probably  based  on  the  custom  or  usage  which  has  prevailed  to  a  great 
extent  in  some  sections  of  the  country  from  its  first  settlement,  originally 
founded  on  Colonial  statutes,  probably,  and  in  others,  perhaps,  growing  up  by 
common  consent,  as  a  kind  of  local  law.  In  a  later  case  before  the  same 
court,  Paterson  &  Xewark  Railroad  Co.  r.  Stevens,  10  Am.  Law  Reg.  N.  s.  16."), 
in  a  very  elaborate  and  learned  opinion  by  Chief  Justice  Bkaslky,  it  was 
decided,  in  conformity  to  the  general  law,  that  the  state  is  the  absolute  owner 
of  the  land  below  high-water  mark  under  all  navigable  water  within  its  terri- 
torial limits,  and  that  such  land  can  be  granted  to  any  purpose,  either  public 
or  private,  without  making  compensation  to  the  owner  of  the  shore.  But  a 
grant  of  a  railway  along  the  shore  of  such  waters  carries  no  implication  of  the 

(J))  It  is  now  held  that  waters  are  Montello,    20    Wall.    430;    Ex   parte 

to  be  deemed  navigable  where   they  Boyer,  109  U.   S.  629,  in  which  the 

are   in  fact  navigable,  whether  tide-  question  of  navigability,  as  bearing 

water  or  not.     The  Daniel    Ball,    10  on    the    question    of    jurisdiction   of 

Wall.  557;  Miller  v.  New  York,  109  courts  of   admiralty,   is  fully  consid- 

U.   S.   385.     And   see  The  Genessee  ered.     Statutory'  declaration  of  navi- 

Chief  r.  Fitzhugh,  12  How.  443;  Fretz  gability  is  unnecessary.     Little  Rock, 

V.   Bull,  Id.  466;  Jackson  i'.  James,  ^Mississippi  River,  &  Texas  Railroad 

20  How.  296;  The  Hine  r.  Trevor,  4  Co.  v.  Brooks,  39  Ark.  403. 
Wall.  555;  The  Eagle,  8  Wall.  15;  The 
[*323] 


§  78.]  ERECTIONS    OVER    NAVIGABLE    WATERS.  335 

3.  lint  in  lidc-watcrs,  and  naviL^ablo  lakers,  the  riL^its  of  the 
owner  of  land  adjoiniiif^  such  waters  arc  subservient  to  the  ])nblic 
rij2:hts,  and  arc  consequently  subject  to  IcLnslative  control,  and  any 
loss  the  owner  of  such  land  may  thereby  sustain  is  damnum  absque 
ivjuria.^ 

4.  It  seems  to  be  considered,  that  the  state  legislatures  liave 
unlimited  power  to  erect  bridges  and  railways,  and  make  any 
Ktlicr  public  works  across  navigable  waters,  subject  only  to  the 
paraniuunt  authority  of  the  national  government.^  (c) 

right  to  use  the  lands  of  the  state  below  the  high-water  mark.  Where  the 
riparian  owner  on  the  ^Milwaukee  River  built  a  wharf  in  front  of  his  land 
projecting  into  the  stream,  it  was  held  that  the  city  of  Milwaukee,  being 
em[X)wered  by  statute  to  establish  along  the  shore  of  the  river  dock  and 
wharf  lines,  and  to  prevent  encroachments  on  snch  line,  could  not  declare  the 
plaintiffs  wharf  a  nuisance  on  the  ground  of  its  encroaching  on  the  line 
established  by  the  city;  that  whether  the  riparian  owner's  title  extended 
beyond  the  dry  land  or  not,  he  had  a  right  to  build  a  wharf  for  his  own 
and  the  public  use,  subject  to  such  regulations  as  the  legislature  might 
establish;  and  that  if  the  city  deemed  its  removal  necessary  for  the  public 
good  it  should  make  compensation  to  the  owner.  Yates  v.  Milwaukee,  10 
Wall.  497. 

*  People  V.  Rensselaer  &  Saratoga  Railroad  Co.,  15  Wend.  113;  Bailey  u. 
Philadelphia  &  Wilmington  Railroad  Co.,  4  Harring.  Del.  3Sf);  People  v. 
St.  Louis,  5  Oilman,  :J.'j1;  Spooner  v.  McConnell,  1  McLean,  337;  Pennsyl- 
vania V.  Wheeling  Bridge  Co.,  13  How.  .518;  Willson  v.  Blackbird  Creek 
^birsh  Co.,  2  Pet.  215;  Hogg  r.  Zanesville  Canal  Co.,  5  Ohio,  410;  Tnitcd 
States  V.  New  Bedford  Bridge,  1  W.  &  M.  401;  Attorney  General  v.  Hudson 
River  Railroad  Co.,  1  Stockt.  52G;  Getty  v.  Same,  21  Barb.  G17. 

In  Siiiitli  )•.  Maryland,  18  How.  71,  it  was  held  that  the  soil  below  low- 
water  mark  in  the  siiores  of  Chesapeake  Bay  in  !^Laryland  belonged  to  the  state, 
subject  to  any  prior  lawful  grants  by  the  state  or  the  sovereign  power  before  the 
Declaration  of  Independence.  But  that  this  right  of  soil  in  the  state  is  a  trust, 
for  the  enjoyment  by  the  citizens  of  certain  public  rights,  among  which  is  the 
connnon  right  of  fishery;  that  tlie  state  may  lawfully  regulate  the  exercise  of 

(r)  Ciilman  r.  Pliiliulclpliia,  3  Wall,  the  head  of  a  department.     ^Miller  r. 

713;Escanaba&LakeMichiganTran.s-  New  York,   109   U.    S.   385;    United 

portation   Co.   v.  Chicago.  107  U.  S.  States  v.  Milwaukee  &  St.  Paul  Rail- 

f>78;    Cardwell    v.    American    Bridge  road  Co.,  5  Biss.  410,  420.     As  to  in- 

Co..  113  IT.  S.  205;  Hunt  r.   Kansas  terference  by  Congress  with  a  bridge 

&  Missouri  Bridge  Co.,  11  Kan.  412.  erected  pursuant  to  its  own  i-esolutions 

Congress  has  power  to  regulate  or  pro-  and  to  licensees    from   the   state,  seo 

liiliit  the  erection  of  bridges  over  the  Newport  &  Cincinnati  Bridge  Co.  v. 

navigable  rivers  of  the  I'nited  States,  United  States,  105  U.  S.  470. 
and  it  may  delegate  that  authority  to 

[*323J 


336  EMINENT   DOMAIN.  [PART   III. 

*5.  The  Commonwealth  of  Massachusetts  has  no  interest  m 
jflats  where  the  tide  ebbs  and  flows,  which  it  is  necessary  to  have 
*  appraised,  under  the  statute,  when  such  land  is  taken,  as  appur- 
tenant to  the  upland,  for  the  purpose  of  building  a  railway.^    And 

this  right,  and  declare  vessels  forfeit  for  violations  of  regulations  so  estab- 
lished; and  that  the  exercise  of  such  powers  by  the  state  is  no  infringement 
of  the  paramount  authority  of  Congress,  or  of  the  exclusive  admiralty  and 
maritime  jurisdiction  of  the  United  States  courts. 

In  Milnor  v.  Railroad  &  Plank- Road  Cos.,  6  Am.  Law  Reg.  6,  where  it  was 
sought  to  restrain  the  companies  from  bridging  the  Passaic  River  below  Newark, 
a  port  of  entry  having  some  foreign  commerce  and  some  internal  navigation, 
it  was  held  that  a  federal  court  had  no  jurisdiction  to  restrain  the  erection  of  a 
bridge  over  a  navigable  river  wholly  within  a  particular  state,  the  erection  being 
authorized  by  the  state  —  and  this,  although  Congress  had  created  a  port  of  en- 
try above  the  point  where  the  bridge  was  to  cross.  Willson  v.  Blackbird  Creek 
Marsh  Co.,  2  Pet.  245,  was  relied  on  as  an  authority,  the  dicta  in  Devoe  i*.  Pen- 
rose FeiTy  Bridge  Co.,  3  Am.  Law  Reg.  83,  were  overruled,  and  Pennsylvania  u. 
Wheeling  Bridge  Co.,  13  How.  579;  Gibbons  v.  Ogden,  and  Willson  v.  Black- 
bird Creek  Marsh  Co.,  explained  and  reconciled  so  as  to  permit  a  state  to 
authorize  such  an  erection. 

^  Walker  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  1;  s.  c.  1  Am.  Railw. 
Cas.  4G2.  Under  a  colonial  ordinance  of  1647,  of  the  flats  on  creeks,  coves,  and 
arms  of  the  sea,  in  ]\Iassachusetts,  where  the  tide  ebbs  and  flows,  one  hundred 
rods  are  appurtenant  to  the  upland,  and  the  owners  of  the  adjoining  land  have 
an  estate  in  fee  therein,  subject  to  the  paramount  right  of  the  state  to  make 
public  erections,  and  subject  also  to  such  restraints  and  limitations  of  the 
proprietors'  use  of  them  as  the  legislature  may  see  fit  to  impose  for  the  pre- 
servation and  protection  of  public  and  private  rights.  Commonwealth  v. 
Alger,  7  Cush.  58.  And  a  similar  custom  or  usage  prevailed  to  some  extent 
in  some  of  the  other  American  colonies,  traces  of  which  will  be  found  in  some 
of  the  more  recent  decisions  in  the  states  which  have  succeeded  them.  The 
question  of  the  right  of  riparian  owners  in  Massachusetts  is  learnedly  dis- 
cussed in  Commonwealth  v.  Roxbury,  9  Gray,  451,  and  the  reporter's  note,  by 
Mr.  Justice  Gray. 

In  1760  the  legislature  of  New  Jersey  passed  an  act  to  enable  the  owners  j 
of  meadows  along  a  small  creek  emptying  into  the  Delaware,  into  which  the 
tide  ordinarily  flowed  for  about  two  miles,  to  support  and  maintain  a  dam,  to 
shut  out  the  tide  and  drain  the  meadows.  The  act  provided  tliat  the  bank, 
dam,  and  other  waterworks  then  or  thereafter  to  be  erected,  should  be  erected 
and  supported  at  the  equal  expense  of  all  the  owners  of  the  meadows,  and 
provided  the  way  in  which  the  natural  watercourse  should  be  kept  clear,  and 
for  the  annual  election  of  managers  empowered  to  assess  the  owners  for  re- 
pairing and  maintaining  the  dam.  The  act  was  accepted,  managers  elected, 
and  a  large  amount  expended,  from  time  to  time.  In  1854  the  legislature 
declared  the  creek  to  be  a  public  highway,  and  empowered  the  municipal 
authorities  to  remove  the  dam,  and  open  the  creek  to  navigation.     It  was  held, 

[*324,  *325] 


§  78.]  ERECTIONS   OVER   NAVIGABLE   WATERS.  337 

as  *  the  owner  has  the  ritilit  to  raise  such  flats,  by  filling-  up,  if  he 
is  compelled  to  do  more  filling  up  to  secure  free  access  to  other 
*  lauds,  by  reason  of  the  construction  of  a  railway,  it  is  proper  to 
be  considered  by  the  jury  in  estimating  land  damages  to  sucli 
owner."  i>ut  the  owner  of  a  tide-mill  has  no  right  to  have  such 
rijtarian  flats  as  he  owns,  kept  open  and  unobstructed  for  the  free 
flow  of  tide-water  to  his  mill. 

0.  The  adjoining  owners  of  such  flats  in  Massachusetts  have 
the  right  to  build  solid  structures  to  a  certain  extent,  and  thus 
obstruct  the  ebb  and  flovv  of  the  tide,  if  in  so  doing  they  do  not 
wholly  obstruct  the  access  of  other  proprietors  to  their  houses 
and  lands ;  and  if  the  mill-owner  and  other  proprietors  suffer 
damage  therefrom,  it  is  damrium  absque  injuria.^  (il)  "There- 
fore," say  the  *  court,  "  so  far  as  the  railroad  erected  by  the  legis- 
lature affected  the  right  of  the  claimants  to  pass  and  repass  to 
and  from  their  lands  and  wharves  with  vessels,  it  was  a  mere 
regulation  of  a  public  right,  and  not  a  taking  of  private  property 
for  a  public  use,  and  gave  no  claim  for  damages." 

7.  The  grant  of  a  railway  "  to  the  place  of  shipping  lumber " 
on  a  tide-water  river,  justifies  an  extension  across  flats  and  over 

on  a  bill  to  restrain  the  township  committee  from  performing  this  duty,  that 
the  legislature  had  the  right  to  make  the  grant,  thei'e  being  nothing  to  show 
that  the  public  interest  demanded  the  navigation  of  the  creek,  and  was  the 
sole  judge  of  the  navigability  of  such  streams;  that  the  act  of  17G0  not  only 
authorized  the  owners  of  the  meadows  to  continue  the  dam,  but  gave  the 
authority  of  the  state  to  compel  its  continuance;  that  the  act  of  1851  was  in 
violation  of  the  Federal  Constitution,  inhibiting  the  several  states  from  passing 
laws  impairing  the  obligation  of  contracts,  and  also  repugnant  to  the  state 
constitution,  as  a  taking  of  private  property  for  public  use,  without  just  com- 
pensation, a  partial  destruction  or  diminution  of  the  value  of  property  being, 
to  that  extent,  a  taking.     Glover  r.  Powell,  2  Stockt.  211. 

''  Commonwealth  c.  Bo-ston  &  Maine  Railroad  Co.,  3  Cush.  25;  s.  c.  1  Am. 
Railw.  Cas.  482;  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Railroad  Co., 
3  Cush.  58;  s.  c.  1  Am.  Railw.  Cas.  508. 

*  Davidson  v.  Boston  &  :\Iaine  Railroad  Co.,  3  Cush.  91 ;  s.  c  1  Am.  Railw. 
Cas.  534;  s.  p.  Stevens  v.  Paterson  &  Newark  Railroad  Co.,  5  Vroom,  532. 

('0  Tn  Massachusetts  the  littoral  pied,  and  subject  to  restrictions  im- 
proprietor  owns  (o  low-water  mark,  posed  by  the  state,  in  the  exercise  of 
subject  to  a  right  in  the  public  to  use  its  power  to  protect  public  harbors, 
the  space  between  higli  and  low  water  &c.,  and  prevent  encroachments  there- 
mark  for  purposes  of  navigation  as  on.  Boston  v.  Lecrow,  17  How.  42G; 
long  as  he  allows  it  to  remain  unoccu-  Richardson  v.  Boston.  21  How.  188. 
VOL.  1.-22  [*32G-*328J 


338  EMINENT   DOMAIN.  [PART   III. 

tide-water   to   a   point   at   which    lumber    can    bo   conveniently 
shipped.^ 

8.  In  a  case  in  the  House  of  Lords,^*^  it  was  held,  that  where  a 
statute  authorizes  a  company  to  construct  certain  works,  as  a  har- 
bor, it  is  to  be  presumed  they  were  to  have  power  to  execute  all 
works  incidental  to  their  main  purpose,  and  which  they  deem 
necessary,  provided  they  act  bona  fide. 

9.  Accordingly,  when  public  trustees  for  improving  the  naviga- 
tion of  the  Clyde  were  authorized  by  statute  to  acquire  lands 
adjoining  the  river,  and  to  construct  a  quay,  or  harbor,  and  having 
acquired  part  of  A.'s  land  proposed  to  erect  a  large  goods-shed 
fronting  the  river,  and  between  the  rest  of  A.'s  land  and  the  river, 
it  was  held,  that  although  the  statute  gave  no  express  power  to 
erect  sheds,  it  must  be  presumed  that  a  harbor,  equipped  with  all 
the  most  approved  appliances  for  trade,  was  intended  by  the  legis- 
lature, and  that  therefore  a  power  to  erect  sheds  was  im plied. ^"^ 

10.  An  interesting  case  ^^  has  been  determined  by  the  *  Supreme 
Court  of  Iowa  in  regard  to  the  important  question,  to  what 
extent  the  large  rivers  in  this  country,  as  the  Mississippi,  are  to 
be  regarded  as  navigable  waters,  above  where  the  tide  ebbs  and 
flows. 

11.  It  is  there  held,  that  all  waters  are  to  be  regarded  as  navi- 
gable, above  where  the  tide  ebbs  and  flows,  which  are  of  common 
use  to  all  the  citizens  of  the  republic  for  purposes  of  navigation,  or 

9  Peavy  v.  Calais  Railroad  Co.,  30  Me.  498;  s.  c  1  Am.  Railw.  Cas. 
147.  See  also  Babcock  v.  Western  Railroad  Co.,  9  Met.  553;  s.  c.  1  Redf. 
Am.  Railw.  Cas.  191.  So  the  grant  of  a  railway  between  certain  termini, 
the  line  between  which  passes  over  navigable  rivers,  authorizes  the  company 
to  bridge  such  rivers.     Attorney-General  v.  Stevens,  Saston,  369. 

10  Wright  V.  Scott,  34  Eng.  L.  &  Eq.  1;  supra,  §  63. 

11  McManus  v.  Carmichael,  5  Am.  Law  Reg.  593.  It  is  maintained  in 
this  case  upon  gi'eat  research,  that  a  large  number  of  the  states  have  adopted 
similar  views  in  regard  to  their  large  rivers.  See  also  Bowman  v.  Wathen, 
2  McLean,  376,  where  the  learned  judge  lays  down  the  rule  that,  except  for 
certain  purposes  such  as  the  erection  of  wharves,  &c.,  which  do  not  obstruct 
navigation,  the  riparian  right  on  navigable  streams  cannot  extend  generally 
beyond  high-water  mark;  but  that  on  the  Ohio  the  right  extends  to  the 
water,  with  the  right  of  fishing  and  every  other  right  properly  appurtenant 
to  the  soil,  and  that  any  act  of  a  state  short  of  an  exercise  of  the  power  to 
appropriate  private  property  for  public  use,  attempting  a  transfer  of  those 
rights  without  the  consent  of  the  proprietor,  would  be  inoperative.  See  also 
Lehigh  Valley  Railroad  Co.  v.  Trone,  28  Penu.  St.  206. 

[*329] 


§  78.]  ERECTIONS   OVER   NAVIGABLE   WATERS.  339 

that  navigability,  in  fact,  is  to  be  regarded  as  the  decisive  test, 
rather  than  the  ebb  and  flow  of  tlio  tide.  And  it  is  here  main- 
tained, that  the  acts  and  declarations  of  the  United  States  con- 
stitute the  Mississippi  a  public  highway,  and  that  consequontlv 
the  riparian  proprietors  have  no  interest  in  the  lands  below  high- 
water  mark.  (^) 

12.  And  where  one,  upon  the  shore  of  a  navigable  stream  or 
arm  of  the  sea,  is  cut  off  by  a  railway  or  other  public  work 
from  all  communication  with  the  navigation,  to  the  injury  of 
wharves  or  other  erections  which  the  party  made  upon  his  land,  it 
has  been  held  that  such  person  is  entitled  to  damages  under  the 
statutes  allowing  parties  compensation  where  their  estate  is  "  in- 
juriously affected."  ^^ 

13.  And  it  seems  to  be  regarded  as  settled,  that  where  the 
grant  of  any  authority,  by  the  state  legislature,  in  regard  to  naviga- 
ble waters,  in  its  exercise  works  an  interference  with  the  exclusive 
power  of  Congress  to  regulate  commerce,  whether  foreign  or  in- 
ternal, such  interference,  being  unlawful,  is  a  nuisance,  and  any 
private  person  suffering  special  damage  thereby  is  entitled  to 
an  action  at  law,  or  to  maintain  a  bill  in  equity  for  a  perpetual 
injunction. ^2 

*  14.  The  questions  are  very  numerous  wliieli  have  arisen  in 
regard  to  the  conflicting  rights  of  different  grantees,  affecting 
franchises  and  easements  of  different  kinds.     In  a  case  in  New 

12  Bell  V.  Hull  &  Selby  Railway  Co.,  0  M.  &  W.  G99. 

i»  Pennsylvania  v.  Wheeling  Bridge  Co.,  13  How.  518;  s.  c.  IS  How.  121. 
The  same  principle  is  recognized  in  other  cases.  Works  v.  Junction  Rail- 
road Co.,  5  JNIcLean,  42.');  United  States  r.  Railroad  Bridge  Co.,  G  McLean, 
517.  Wlien  the  case  of  Pennsylvania  v.  Wheeling  Bridge  Co.  was  last  before 
the  court,  it  was  held,  that  the  authority  of  Congress  to  regulate  commerce 
included  the  power  to  determine  what  was  an  obstruction  to  navigation;  and 
Congress  having  legalized  the  bridge  in  question,  after  judgment  of  the  court 
to  abate  it,  but  before  the  judgment  was  carried  into  effect,  it  was  held,  tliat 
the  occasion  for  executing  the  judgment  was  thereby  removed.  Mr.  Justice 
Nelson,  among  other  things  said  that  although  riparian  owners  might  con- 
struct wharves,  &c.,  for  the  purpose  of  subjecting  the  stream  to  the  various 
uses  to  wliich'it  might  be  applied,  yet  if  those  structures  materially  interfered 
with  tiie  public  right  they  might  be  removed  or  abated,  and  tiiat  the  internal 
streams  of  a  state  were,  as  to  the  public  right  of  navigation,  exclusively  under 
state  control. 

(f)  See  supra,  note  (a). 

[*330] 


340  EMINENT   DOMAIN.  [PART   III. 

Ilumpshire,^*  some  questions  affecting  the  construction  of  grants, 
and  reservations  of  this  kind,  are  very  extensively  discussed. 

15.  It  seems  to  be  well  settled,  both  in  England  and  in  this 
country,  that  if  there  is  no  legal  authority  for  the  erection  of  a 
pier  in  a  navigable  river,  such  erection  will  become  a  nuisance 
iper  se,  and  that  no  evidence  can  be  received  to  show  that  although 
illegal  it  will  do  no  harm,  that  question  being  wholly  imma- 
terial.^-^ 

16.  Where  the  act  of  Congress,  laying  out  the  city  of  Burlington, 
Iowa,  reserved  a  strip  of  land  along  the  bank  of  the  Mississippi 
River,  to  be  forever  used  for  a  highway  and  other  public  uses, 
and,  after  the  sale  of  lots  abutting  upon  the  reservation.  Congress 
released  its  title  to  the  city,  it  was  held  that  the  dedication  of  the 
strip  of  land  was  a  contract,  and  could  not  be  repealed,  or  revoked ; 
and  that  the  title  of  the  city  was  subject  to  the  original  conditions 
of  the  reservation ;  and  that  the  accretions  from  the  river  were 
the  same  as  the  rest  of  the  strip ;  that  adjoining  land-owners  had 
such  an  interest  that  they  could  restrain  the  city  from  applying 
the  land  to  private  uses  ;  but  that  it  might  be  applied  to  the  uses 
of  a  railway,  for  any  such  purposes  as  would  justify  the  exercise 
of  the  right  of  eminent  domain.^*^  (/  ) 

1^  Goodrich  v.  Eastern  Railroad  Co.,  37  X.  H.  149. 
15  People  V.  Vanderbilt,  .38  Barb.  282. 
1^  Cook  V.  Burlington,  30  Iowa,  94. 


(/)  Confirmed  in  Cook  v.  Burlington,  36  Iowa,  357. 
[*330] 


§  '9] 


ERECTIONS   OBSTRUCTING   STREAMS. 


iJ41 


SECTION   XVII. 

Obstruction  of  Streams  hij  Company'' s  Works. 


1.  Company  cannot  divert  stream,  witli- 

out  iiKikinj,'  compensation. 

2.  Company  liable  lor  defective  construc- 

tion. 

3.  So  also  for  the  use  of  defective  works 

built  b}'  otliers. 

4.  Company  liable  to  action  where   man- 

damus will  not  lie. 

5.  Company  liable   for   defective   works 

done  according  to  its  plans. 


G.  When  a  railway  "  cuts  off  "  wharves 
from  the  navigation. 

7.  Stream   diverted    must   be    restored 

and  maintained. 

8.  Company  cannot  cast  surface  water 

on    adjoining   land    e.xccpt    from 
strict  necessity. 

9.  Public  company  exceeding  its  powers 

liable  to  an  action. 
10.  In  such  cases  equity  will  relieve  by 
injunction. 


§  79.  1.  Ill  regard  to  the  obstruction  of  streams  by  building 
railways,  the  better  opinion  seems  to  be,  that  the  company  are 
boiuid  to  do  as  little  damage  to  riparian  proprietors  as  is  reason- 
ably *  consistent  with  the  enjoyment  of  their  grant.^  (a)  The 
Rtatc  cannot  grant  the  power  to  divert  a  stream  of  water  without 
compensation.^  (h~) 

*  Bougliton  r.  Carter,  18  Jolins.  405',  Hooker  v.  Xew  Haven  &  Xorthamp- 
ton  Co.,  11  Conn.  IIG. 

^  Gardner  v.  Newburgh,  2  Johns.  Ch.  162.  But  where  a  railway  takes  the 
land  under  its  general  powers,  and  in  estimating  damages  calls  the  attention 
of  the  jury  to  the  fact  that  it  will  become  necessary  to  divert  a  stream  of  water 
(To.ssing  it,  the  owner  of  the  land  will  have  no  additional  claim  for  damages 
when  the  stream  is  diverted.  And  it  is  not  essential  to  the  right  of  the  com- 
pany to  divert  the  stream,  that  an  express  grant  for  that  purpose  should  be 
contained  in  the  inquisition.  Baltimore  &  Potomac  Railroad  Co.  v.  Magruder, 
.31  Md.  79. 


(rt)  An  action  for  damages  for 
oKstructing  a  navigable  stream  is  an 
action  in  tort.  Doughty  t\  Atlantic  & 
North  Carolina  Railroad  Co.,  78  N.  C. 
22.  That  a  simple  obstruction  is  a 
nuisance  is  a  matter  of  fact  for  the 
jury.  Delaware  &  Hudson  Canal  Co. 
V.  Lawrence,  2  Hun,  1G3. 

('>)  But  wliere  a  company  acts 
within  the  limits  of  its  franchises, 
and  has  the  rigiit  of  way  and  uses 
due  care  and  skill,  it  is  not  liable  for 
injuries,  the  natural  and  unavoidable 


effect  of  the  road.  St.  Louis,  Iron 
Mountain,  &  Southern  Railway  Co. 
r.  ]\Iorris,  3.")  Ark.  G22.  Tims,  it  is 
not  liable  for  the  ovei-flow  of  a 
stream  caused  by  the  necessary  and 
proper  deration  of  its  roadbed  on  its 
own  land,  and  not  in  the  channel  of 
the  stream.  IMoyor  r.  New  York  Cen- 
tral &  Hudson  River  Railroad  Co.,  8S 
X.  y.  3.')1.  As  to  the  diversion  of 
streams  under  the  English  statutes,. 
See  Pngh  i-.  Golden  Valley  Railway  Co. , 
Law  Rep.  12  Ch.  271;  s.  c.  Law  Rep. 

[*331] 


342  EMINENT   DOMAIN.  [PART   III. 

2.  Thus  if  by  making  needless  obstructions  in  streams,  in  the 
erection  of  bridges,  or  by  imperfect  or  insufficient  skiices  or  ducts 
for  the  passage  of  streams,  intersected  by  a  railway,  the  land  or 
adjoining  property  is  injured,  the  company  are  liable.^  (c) 

8  Hatch  i\  Vermont  Central  Railroad  Co.,  25  Vt.  49  et  seq. ;  Mellen  v. 
Western  Railroad  Co.,  4  Gray,  301 ;  March  v.  Portsmouth  &  Concord  Railroad 
Co.,  19  N.  H.  372.  In  Brickett  v.  Morris,  12  Jur.  n.  s.  803,  the  House  of  Lords, 
in  a  Scottish  appeal,  for  the  first  time,  as  was  claimed  by  Lord  Westbury,  estab- 
lished the  proposition  that  where  an  adjoining  riparian  proprietor  builds  in  the 
channel  of  a  running  stream,  it  is  incumbent  on  him  to  show  that  no  detriment 
will  thereby  ensue  to  the  adjoining  proprietor.  The  propositions  here  declared 
are,  that  riparian  proprietors  have  a  common  interest  in  the  water  of  a  running 
stream,  and  a  separate  property  in  the  alveus,  or  channel  thereof,  vsque  ad  me- 
dium filum  Jluminis.  But  no  proprietor  may  so  use  his  property  in  the  channel 
as  to  affect  the  interest  of  the  opposite  owner;  and,  in  order  to  entitle  a  ripa- 
rian proprietor  to  relief  against  building  on  the  channel,  it  is  not  necessary  to 
prove  that  damage  to  him  has  been,  or  is  likely  to  be,  caused  thereby.  In  such 
case  the  onus  of  showing  that  no  damage  will  arise,  lies  on  the  person  mak- 
ing the  encroachment.  Anything  done  in  the  channel  which  produces  no 
sensible  effect  on  the  stream  is  allowable.  Upon  the  question  whether  any 
such  rule,  as  to  the  burden  of  proof  in  such  cases,  could  fairly  be  applied 
to  railway  structures  necessarily  built  in  the  channel  in  crossing  a  running 
stream,  the  company  having  the  right  to  make  the  erections  in  the  most  pru- 
dent manner,  it  would  seem  that  the  company  could  be  held  responsible  only 
for  such  present  or  prospective  damage  as  could  be  established  by  legal  evi- 
dence. And  no  presumption  against  the  company  should  be  raised  on  the  mere 
ground  of  its  having  done  what  its  powers  allowed  it  to  do.  But  the  owner 
of  the  stream  is  not  responsible  for  damage  resulting  to  riparian  owners  in 
consequence  of  erections  by  other  parties  acting  under  an  independent  claim  of 
right.  Saxby  v.  Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.,  Law  Rep. 
4  C.  P.  198.  Consent  of  the  land-owner  to  the  erections  being  made  will  not 
affect  his  remedy  under  the  statute.  Thames  Conservators  v.  Pimlico  Rail- 
way Co.,  Law  Rep.  4  C.  P.  59. 

15  Ch.  330.  Under  the  statutes  of  90  111.  514.  Xor  by  unskilful  con- 
Ohio,  see  Valley  Railway  Co.  v.  Bohm,  struction  to  overflow  lands.  St.  Louis, 
34  Ohio  St.  114.  Under  the  statutes  Iron  Mountain,  &  Soutliern  Railway 
of  Iowa  see  Rensch  v.  Chicago,  Bur-  Co.  v.  Morris,  35  Ark.  022. 
lington,  &  Quincy  Railroad  Co.,  57  (c)  A  company  is  bound  to  provide 
Iowa,  687.  Right  of  way  does  not  culverts,  &c.,  and  is  liable  for  injuiy 
include  the  right  to  divert  a  stream  to  adjacent  lands  caused  by  an  over- 
from  its  natural  channel  to  the  injury  flow  resulting  from  a  failure  to  perform 
of  the  land-owner.  Stodghill  v.  Chi-  that  duty.  Carriger  v.  East  Tennessee, 
cago,  Burlington,  &  Quincy  Railroad  Virginia,  &  Georgia  Railroad  Co.,  7 
Co.,  43  Iowa,  20;  Chicago,  Rock  Is-  Lea,  Tenn.  388;  Mississippi  Central 
land,  &  Pacific  Railroad  Co.  v.  Carey,  Railroad  Co.  v.  Caruth,  51  Miss.  77; 
[*331] 


§  79.]  ERECTIONS   OBSTRUCTING    STREAMS.  343 

3.  So,  too,  the  company  arc  liable  to  pay  damaj^cs  for  an  injury 
caused  to  the  plaintiff  by  flowing-  hia  land  in  a  great  freshet,  in 
consequence  of  their  bridges  damming  up  the  water,  although  the 
bridges  were  erected  by  another  company  before  tlic  defendants' 
company  was  chartered,'*  and  there  had  been  no  request  to  the 
defendants  to  remove  the  obstruction.^ 

4.  And  where  the  waters  on  certain  lowlands  were  flowed  back 
upon  the  i)laintiff's  land,  by  reason  of  insunicient  openings  in  a 
railway  constructed  across  such  lowlands,  it  was  held  that  the 
company  were  liable  to  make  good  the  damages  sustained  by  plain- 
tiff, although  no  statute  required  them  to  make  the  openings,  and 
they  could  not  be  compelled  to  do  so  by  writ  of  mandamus.^  (cZ) 

*  Brown  r.  Cayuga  &  Susquehannah  Railroad  Co.,  12  N.  Y.  -180. 

*  Per  Dkxio,  J.,  in  Brown  v.  Cayuga  &  Susquehannah  Raih'oail  Co.,  12  X.  Y. 
486.  But  the  question  as  to  the  liability  of  the  company  for  continuing  the  ob- 
struction, in  the  absence  of  notice  to  remove  it,  was  not  decided.  The  neces- 
sity of  a  special  request  is  discussed  in  Norton  v  Valentine,  14  Vt.  239,  244. 
In  Hubbard  v.  Russell,  24  Barb.  404,  it  is  held,  that  in  order  to  recover  dam- 
ages of  the  "  continuator  of  a  private  nuisance,  originally  erected  by  another," 
there  must  be  proof  of  a  request  to  remo\'e  it.  But  where  a  railway  company 
bought  up  a  navigation  company,  and  suffered  the  works  to  fall  to  decay,  so 
that  the  harbor  was  damaged,  the  company  was  held  liable  to  the  municiiiality. 
Although  but  a  non-feasance  in  form,  it  operated  substantially  as  a  misfeas- 
ance, the  locks  of  the  navigation  company  having  been  maintained  and  used  in 
such  a  state  as  to  cause  the  injury.  Preston  v.  Eastern  Counties  Railway  Co., 
30  Law  T.  288;  s.  c.  nom.  Preston  v.  Xorfolk  Railway  Co.,  2  II.  &  N   735. 

*  Lawrence  c.  Great  Northern  Railway  Co.,  4  Eng.  L.  &  Eq.  2G5;  s.  c  16 
Q.  B.  Gi:},  and  G  Railw.  Cas.  C5G. 

Same  v.  Mason,  lb.  231.  And  bound  that  the  company  is  bound  to  provide 
also  to  employ  the  knowledge  and  against  such  floods  as  may  reasonably 
skill  in  engineering  which  is  ordinarily  be  expected.  Nor  is  the  company, 
known  and  practised  in  such  works;  though  bound  to  provide  suitable  cnl- 
but  it  is  not  liable  merely  for  not  con-  verts,  ditches,  &c.,  liable  for  such  inju- 
structing  a  culvert  sufficient  to  pass  ries  as  the  land-owner  might  prevent  by 
extraordinary  floods.  Baltimore  &  the  use  of  reasonable  means.  Munkers 
Ohio  Railroad  Co.  v.  Sulphur  Spring  r.  Kansas  City,  St.  Ji)seph,  &  Council 
School  Di.strict,  9G  Penn.  St.  65.  See  Blufi"s  Railroad  Co.,  72  Mo.  514.  ^Vhere 
also  Illinois  Central  Railroad  Co.  r.  practicable  a  culvert  should  be  so  con- 
Bethel,  11  Brad.  Ap.  17;  Houston  &  structed  as  to  permit  the  passage  of  a 
Creat  Northern  Railroad  Co.  i\  Parker,  stream  in  its  natural  channel.  Van 
50  Tex.  330;  Ellct  r.  St.  Louis,  Kan-  Oisdol  v.  Burlington,  Cedar  Rapids,  & 
sas  City,  &  Northern  Railway  Co.,  70  Northern  Railway  Co.,  50  Iowa,  470 
Mo.  518.  But  see  Union  Trust  Co.  v.  Ql)  Right  of  action  for  damages 
Cuppv,  26  Kan.  754,  where  it  is  said  caused  by  an  overflow,  the  result  of 

[*331j 


344 


EMINENT   DOMAIN. 


[part   III. 


So,  too,  in  regard  to  other  public  works,  if  damage  accrue  to 
others  in  consequence  of  their  imperfect  construction,  the  propri- 
etors are  *  liable,  as  for  instance  a  municipal  corporation,  for  in- 
sufficient sewers,  whereby  plaintiff's  factory  was  overflowed  in  a 
freshet,  and  the  property  therein  seriously  injured.' 

5.  In  a  case,  where  the  plaintiff's  garden  was  overflowed,  by 
the  manner  in  which  an  excavation  was  made,  in  the  course  of 
construction  of  a  railway  across  a  road,  or  highway,  by  carelessly 
cutting  into  a  drain,  or  culvert,  and  letting  out  the  water,^  it 
seems  to  have  been  admitted,  on  all  hands,  that  the  company 
would  have  been  liable  for  the  injury  if  it  had  been  done  by  per- 
sons under  their  control,  or  in  compliance  with  the  directions  of 
their  surveyor  or  engineers.^ 

''  Rochester  White  Lead  Co.  v.  Rochester,  3  Corast.  463.  See  also  Radcliff 
V.  Brooklyn,  4  Comst.  lO.j;  Xevv  York  v.  Furze,  3  Ilill,  612;  Bailey  v.  New 
York,  3  Hill,  531. 

8  Steel  V.  Southeastern  Railway  Co.,  IG  C  B.  550;  s.  c.  32  Eng.  L.  &  Eq. 
366.  See  infra,  §  129,  for  a  full  statement  of  this  case.  But  there  is  no  lia- 
bility incurred  to  a  mill-owner  below,  by  cutting  off  springs,  in  sinking  wells  on 
one's  own  land.    Chasemore  v.  Richards,  2  H.  &  N.  168;  s.  c.  29  Law  T.  230. 

narrowness  in  the  span  of  a  bridge,     Pacific  Railroad  Co.  v.  MoflBtt,  75  111. 


does  not  accrue  on  the  construction 
of  the  bridge,  but  only  on  the  over- 
flow. Moison  V.  Great  V\'estern  Rail- 
way Co.,  14  U.  C,  Q.  B.  109;  Vanhour 
V.  Grand  Trunk  Railway  Co.,  18  U.  C, 
Q.  B.  356.  But  see  Carron  r.  Great 
Western  Railway  Co.,  14  U.  C,  Q.  B. 
192.  As  to  liability  in  particular 
cases  of  overflow,  and  defences  to 
actions  therefor,  see  McCormick  v. 
Kansas  City,  St.  Joseph,  &  Council 
Bluffs  Railroad  Co.,  70  Mo.  359; 
Houston  &  Great  Northern  Railroad 
Co.  V.  Parker,  50  Tex.  330;  St.  Louis, 
Iron  Mountain,  &  Southern  Railway 
Co.  V.  Morris,  35  Ark.  022.  As  to 
the  measure  of  damages,  see  Chicago, 
Rock  Island,  &  Pacific  Railroad  Co. 
V.  Carey,  90  111.  514;  St.  Louis,  Iron 
Mountain,  &  Soutliern  Railway  Co.  v. 
Morris,  supra;  Van  Hoozier  r.  Han- 
nibal &  St.  Joseph  Railroad  Co.,  70 
Mo.  145;  Chicago,  Rock  Island,  & 
[*332] 


.524;  Wagner  v.  Long  Island  Railroad 
Co.,  2  Hun,  633. 

For  the  abatement  of  a  nuisance 
by  obstruction  to  navigation  a  private 
person  cannot  maintain  a  suit  unless 
he  has  suffered  special  injury.  Jarvis 
V.  Santa  Clara  Valley  Railroad  Co., 
52  Cal.  438. 

For  the  turning  of  a  current  so  as 
to  wash  away  soil,  the  land-owner 
may  recover  for  prospective  injury, 
and  such  recovery  will  bar  an  action 
for  damages  caused  by  a  subsequent 
unusual  flood.  Fowle  v.  New  Haven 
&  Nortliampton  Co.,  112  Mass.  334. 
And  see  Stodghill  v.  Chicago,  Bur- 
lington, &  Quincy  Railroad  Co.,  53 
Iowa,  341.  But  where  the  damage  is 
by  annual  overflow  and  injury  to  crops, 
redress  may  be  bad  by  successive 
actions.  Van  Hoozier  v.  Hannibal 
&  St.  Joseph  Railroad  Co.,  70  Mo. 
145. 


§  70.]  ERECTIONS   OBSTRUCTFKG   STREAMS.  34.0 

I).  And  where  tlic  plaintilf  owned  a  dock  on  the  cast  side  of 
llud-son  River,  on  the  margin  of  a  bay,  under  a  cliartcr  from  the 
state,  in  1849,  and  the  Hudson  River  Railway,  in  pursuance  of 
its  charter  granted  in  184(3,  constructed  tlieir  road  across  the  bay 
on  pik^s,  about  nineteen  liundred  feet  west  of  tlie  dock,  with  a 
<h-awbridge  sufficient  to  allow  a  passage  to  such  vessels  as  had 
before  navigated  the  bay,  the  charter  of  the  railway  containing  a 
provision,  that  if  any  dock  shall  be  "cut  ofl" "  by  the  railway, 
the  company  shall  extend  tlie  same  to  their  road,  it  was  held 
that  this  dock  was  not  "cut  off"  within  the  meaning  of  the 
provision.^  (^) 

7.  And  under  the  New  York  statute,  and  the  same  rule  would 
probably  apply  in  other  states,  a  railway  company  which  is  com- 
pelled to  divert  a  stream  of  water  in  the  construction  of  its  road 
is  bound  not  only  to  restore  it  as  nearly  as  practicable  to  its  for- 
mer state,  but  also  to  maintain  it  there,  since  the  mere  restoration 
of  the  stream  may  not  leave  it  as  secure  as  before.^^ 

8.  But  surface  water  produced  by  the  excavation  in  building 
the  railway  is  not  to  be  regarded  in  the  same  light  as  water  con- 
fined to  a  natural  channel,  and  in  such  case  the  company  will  be 
*  liable  to  an  action  for  turning  it  upon  the  land  of  an  adjoining 
proprietor,  unless  that  becomes  indispensable  in  order  to  maintain 
the  railway,  and  is  done  in  a  manner  to  do  the  least  injury  to  the 
land-owncr.i'  (/) 

9.  In  an  English  casc,^^  before  the  Lords  Justices  on  appeal, 
where  the  defendants  had  obtained  parliamentary  powers  to  take 
the  water  from  certain  springs,  being  the  feeders  of  a  rivor  upon 
which  mills  and  shops  were  in  operation,  upon  building  a  com- 
pensation reservoir  to  supply  the  deficiency  caused  by  such  diver- 
sion, by  saving  the  waters  at  flood-tide  for  use  in  dry  times ;  and 
where  they  had  built  such   reservoir,  and   one  of  the  riparian 

'•'  Tillotson  V.  Hudson  River  Railroad  Co.,  Jo  Barb.  400. 
*o  Cott  I'.  Lewiston  Railroad  Co.,  36  N.  Y.  214. 
^'  Curtis  r.  Eastern  Railroad  Co.,  li  Allen,  5.3. 
^-  Clowes  V.  Staffordshire  Potteries  AVater- Works  Co.,  21  W.  R.  32. 

(';)  Who  may  maintain  an  action  surface  water  is  matter  for  an  action 
for  an  obstruction  of  the  approa  -h  to  a  and  damages.  Ilurdniau  v-  North- 
dock.  Chicago  &  Alton  Railroad  Co.  eastern  Railway  Co.,  Law  Rep.  3 
r.  Maher,  91  111.  312.  C.   R.    IGS;    Rflcgar    r.   IIa.stiug3    & 

(/)  Interference  with  the  flow  of  Dakota  Railwav  Co.,  2S  Minn.  510. 

[♦333] 


346 


EMINENT   DOMAIN. 


[PART    III. 


owners  complained  against  them  for  fouling  the  water  and  render- 
ing it  so  muddy,  by  reason  of  the  reservoir,  as  to  make  it  unfit 
for  use  in  his  dyeing  establishment,  and  praying  for  an  injunction 
against  the  defendants,  it  was  held  their  parliamentary  powers 
gave  them  no  right  to  foul  the  water,  and  consequently  they  were 
liable  to  an  action. 

10.  It  was  further  held  that  this  was  a  proper  case  for  a  court 
of  equity  to  interfere  by  way  of  injunction :  (1)  On  the  ground  of 
saving  a  multiplicity  of  actions  ;  (2)  on  the  ground  that  the  court 
will  always  restrain  a  public  company  from  exercising  their  statu- 
tory powers  in  such  a  manner  as  to  interfere  with  the  rights  of 
others.  (^) 


SECTION  XVIII. 


Ohstruction  of  Private  Ways. 


1.  Obstruction  of  private  way  question 
'    of  fact  for  a  jury. 

2.  Farm  road  on  one's  own  land,  not  a 

private  way. 


J.  Obstruction  of  right  of  way  by 
sage  of  railway  along  street. 


5  80.  1.  Where  the  statute  dves  a  ridit  of  action  aGrainst  the 
company,  when  in  the  construction  or  management  of  their  road^ 
they  shall  obstruct  the  safe  and  convenient  use  of  a  private  way, 
it  was  held  not  necessary  to  the  maintenance  of  the  action  that 
the  railway  should  be  constructed  or  managed  in  an  illegal  and 
improper  manner. ^  (a)     But  if  the  railway  be  shown  to  have  been 

1  Concord  Railroad  Co.  v.  Greely,  23  X.  II.  237. 

{g)  Equity  may  compel    the   re-  («)  The  owner  of   the   way  may 

moval  of  obstructions.    Lamar  r.  Rail-  have  damages,  but  not  necessarily  to 

roadCo.,  10  S.  C.  476.    But  where  a  tak-  tlie  amount  required  to  construct  an- 

ing  of  water  from  a  watercourse  inter-  other.     Gear  v.  Railway  Co.,  39  Iowa, 

feres  with  the  working  of  a  mill  for  a  23. 

few  minutes  in  the  day  only,  the  court         By  using  a  dock  one  cannot  acquire 

will  not  interpose.     Sandwich  v.  Great  such  a  right  of   way  as  will   entitle 

Northern  Railway  Co.,  Law  Rep.   10  him  to  damages  for  the  construction 

Ch.  707.     Nor  where  water  taken  from  of  a  railway  across  it  without  a  draw, 

the   stream  by   an  upper  proprietor,  preventing  vessels  from  coming  to  his 

though  used,  is  returned  unpolluted,  private  wharf.     Thayer  v.  Xew  Bed- 

Kensit  v.  Great  Eastern  Railway  Co.,  ford  Railroad  Co.,  125  Mass.  253. 
Law  Rep.  23  Ch.  566. 
[*333J 


§  80.]  OBSTRUCTION   OF  PRIVATE  WAYS.  347 

constructed  and  managed  in  a  proper  manner,  and  a  passage  over 
(lie  railway  provided  for  the  private  way,  the  court  cannot  decide, 
as  nuitter  o[  law,  whether  the  safe  and  convenient  use  of  the  way 
is  obstructed  or  not.  That  is  a  question  of  fact  to  be  settled  by 
the  jury.2 

2.  But  a  farm  road,  which  the  owner  of  the  land  lias  construct- 
ed for  the  convenient  use  of  his  farm,  is  not  to  be  regarded  as  a 
private  way,  within  the  meaning  of  a  railway  act.*^  A  private  way, 
within  the  construction  of  the  railway  acts,  is  a  way,  or  right  of 
way,  which  one  man  has  in  the  land  of  another.*  The  owner  of  a 
private  way,  for  the  jiurpose  of  recovering  penalties  for  its  ob- 
struction, is  the  person  who,  for  the  time  being,  owns  such  road 
in  jjossession.** 

3.  But  it  has  been  held,°  that,  where  the  plaintiff's  right  of  way 
•  in  another's  land  was  obstructed  by  the  passage  of  a  railway 
througli  the  streets  of  a  town,  in  accordance  with  their  charter,  no 
action  for  damages  could  be  maintained,  and  that  the  party  could 
have  no  redress,  unless  his  case  came  within  the  provisions  of  the 
statute  allowing  compensation. 

2  Greenwood  r.  Wilton  Railroad  Co.,  23  N.  II.  2G1. 

«  Clark  V.  Boston,  Concord,  &  Montreal  Railroad  Co.,  24  N.  II.  114;  s.  p. 
Presbrey  r.  Old  Colony  &  Newport  Railroad  Co.,  103  Mass.  1. 

*  IMiss  r.  Connecticut  &  Passuniixsic  Rivers  Railroad  Co.,  Vermont,  not 
reported. 

*  Mann  v.  (ireat  Southern  &  AVestern  Railway  Co.,  9  Ir.  Com.  Law,  105. 

*  ^IcLauglilin  v.  Charlotte  &  South  Carolina  Railroad  Co.,  5  Rich.  583. 
But  this  decision  seems  to  rest  on  the  peculiar  views  in  that  state  on  that  sub- 
jpct,  that  it  is  lawful  to  take  private  property  for  public  use  without  compen- 
sation, the  state  constitution  containing  no  provision  on  the  subject.  But  the 
reported  cases  in  that  state,  from  the  first.  Dun  v.  Charleston,  1  Harper,  189, 
manifest  a  scrupulous  regard  for  the  rights  of  property-owners,  when  inter- 
fered with  for  other  than  strictly  public  purposes.  And  it  would  seem  that 
practically,  and  as  a  general  thing,  the  legislature  has  not  exercised  the  theo- 
retical right  which  it  possesses,  of  taking  private  property  for  public  use  with- 
out compeusation. 

[^334] 


348 


EMINENT   DOMAIN. 


[part   III. 


SECTION  XIX. 


Statute  remedy  Exclusive. 


1,  7.  Statute  remcd}'  for  land  taken,  gen- 

erally exclusive  of  any  other. 

2,  But  if  company  does  not  pursue  stat- 

ute it  is  liable  in  trespass ;  and  for 
negligence  liable  also  in  action  on 
the  case. 

3,  4.  Courts  of  equity  often  interfere  by 

injunction. 


5.  But  right  at  law  must  be  first  estab- 
lished. 

G.  Where  statute  remedy  fails,  common- 
law  remedy  exists. 

8.  Company  adopting  works  responsible 
for  amount  awarded  for  land  dam- 
ages. 


§  81.  1.  It  seems  to  be  "well  settled,  notwithstanding  some  ex- 
ceptional cases,  that  the  remedy  given  by  statute  to  land-owners 
for  injuries  sustained  by  taking  land  for  railways,  is  exclusive 
of  all  other  remedies,  and  not  merely  cumulative. ^  (a) 

1  East  &  "West  India  Dock  &  Birmingham  Junction  Railway  Co.  v.  Gattke, 
3  Macn.  &  G.  155;  s.  c.  3  Eng.  L.  &  Eq.  59;  Watkius  r.  Great  Northern 
Railway  Co.,  IG  Q.  B.  961;  s.  c  6  Eng.  L.  &  Eq.  179;  Kimble  v.  AVhite 
Water  Valley  Canal,  1  Cart.  285;  Knorr  v.  Germantown  Railroad  Co., 
1  Whart.  256;  Mason  v.  Kennebec  &  Portland  Railroad  Co  ,  31  Me.  215:  s.  c. 
1  Am.  Railw.  Cas.  62;  McCormack  v.  Terre  Haute  &  Richmond  Railroad  Co., 
9  Ind.  283.  But  in  Carr  v.  Georgia  Railroad  &  Banking  Co.,  1  Kelly,  521,  it 
was  held,  that  the  statute  remedy  was  not  exclusive,  but  merely  cumulative. 
This  case  professes  to  go  upon  tlie  authoritj'  of  Crittenden  v.  Wilson,  5  Cow. 
1G5,  where  it  was  lield,  that  the  party  whose  lands  had  been  overflowed,  by 
means  of  a  dam  erected  by  the  authority  of  the  legislature,  which  contained  a 
provision  for  estimating  damages  to  land-owners,  might  maintain  an  action  as 
at  common  law.  These  decisions  go  upon  the  principle,  found  in  some  of  the 
elementary  books,  that  a  statutory  remedy  for  what  was  actionable  at  common 
law  is  prima  facie  to  be  regarded  as  cumulative  merely.     It  seems  now  to  be 


(a)  To  that  effect  are  Cairo  &  Ful- 
ton Railroad  Co.  v.  Turner,  31  Ark. 
494;  Johnson  c.  St.  Louis,  Iron  Moun- 
tain, &  Southern  Railway  Co.,  32  Ark. 
758;  International  &  Great  Northern 
Railway  Co.  v.  Benitos,  10  Am.  & 
Eng.  Railw.  Ca.s.  122;  Ilalloway  v. 
University  Railroad  Co.,  85  N.  C. 
452.  But  contra  under  the  statutes  of 
particular  states.  In  some  of  the 
states  trespass  will  lie.  Atlantic  & 
Gulf  Railroad  Co.  v.  Fuller,  48  Ga. 
[*334] 


423;  Little  Rock  &  Fort  Smith  Rail- 
road Co.  V.  Dyer,  35  Ark.  360;  Grand 
Rapids  &  Indiana  Railroad  Co.  r. 
Heisel,  47  Mich.  393.  In  Tennessee  the 
owner  may  have  a  jury  of  inquest  or  an 
action  on  the  case  for  the  value  of  tli' 
land  and  damages.  Duck  River  Val- 
ley Railroad  v.  Cochrane,  3  Lea,  Tenn. 
478.  Under  the  English  Railway- 
Clauses  Consolidation  Act  of  1845,  seo 
Loosemoore  v.  Tiverton  &  North  Devon 
Railway  Co.,  Law  Rep.  22  Ch.  25. 


§  81.]  STATUTE   REMEDY   EXCLUSIVE.  349 

*  2.  ]>iit  if  the  railway  company  liavc  assumed  to  appro|)riatc 
the  land  in  violation  of  the  provisions  of  the  statute  to  be  com- 
plied with  on  their  part,  their  acts  are  ordinarily  to  be  regarded 
as  trespasses ;  and  where  they  liave  acquired  the  rifrht  to  tiie  use 
of  the  land,  but  have  omitted  some  duty  imposed  by  the  statute,  or 
where  they  have  been  guilty  of  negligence,  or  want  of  skill,  in  the 
exercise  of  their  legal  rights,  they  make  themselves  liable  to  an 
action  upon  the  case  at  common  law.-  (^>) 

the  generally  received  opinion,  that  tlie  statutory  remedy,  being  more  ample 
and  more  si>ecific,  is  ordinarily  to  be  regarded  as  exclusive.  But  the  settled 
difference  of  opinion  among  the  judges  of  the  Queen's  Bench,  in  Keimett 
Navigation  Co.  v.  Withingtou,  18  Q.  B.  531;  s.  c.  11  Eng.  L.  &  Eq.  472, 
shows  that  the  matter  is  not  quite  settled  in  England.  The  learned  editors 
of  the  American  Railway  Cases  have  an  able  and  veiy  satisfactory  note  on 
this  subject  in  which  most  of  the  authorities  bearing  on  the  jx)int  are  thor- 
oughly reviewed.  1  Am.  Railw.  Cas.  1G6  et  seq.  In  Aldricli  r.  Cheshire 
Railroad  Co.,  1  Fost.  N.  II.  359;  s.  c.  1  Am.  Kailw.  Cas.  20G,  it  is  held,  that 
the  statute  remedy  is  exclusive  of  all  others.  So  also  in  Troy  v.  Cheshire 
llailroad  Co,  3  Fost.  N.  H.  83,  it  is  held,  that  the  statute  remedy  must  be  fol- 
lowed, as  far  as  it  extends,  but  if  it  extend  to  part  only  of  the  injury  occa- 
sioned, the  party  may  have  his  action  at  common  law  for  the  residue.  But 
where  a  railway  company  is  ordered  to  make  and  maintain  a  private  way  for 
the  benefit  of  a  party,  and  fails  to  comply,  the  appropriate  remedy  is  the  one 
pointed  out  in  the  statute.  White  v.  Boston  &  Providence  Railroad  Co., 
6  Cush.  420.  And  where  the  statute  provides  no  specific  remedy  in  such  a 
case,  an  action  on  the  case  will  probably  lie. 

In  Ambergate,  Nottingham,  &  Boston  &  Eastern  Junction  Railroad  Co.  v. 
Midland  Railway  Co.,  2  Ellis  &  B.  823;  s.  c.  22  Eng.  L.  &  Eq.  2S9,  under  a 
statute  giving  a  penalty  for  one  company  running  its  engines  on  the  track  of 
another  company,  without  first  having  obtained  the  requisite  certificate  of 
approval  of  the  engines  by  the  second  company,  it  was  held,  that  this  did  not 
take  away  the  common-law  right  of  seizing  the  engines,  while  on  the  track, 
damage  feasant;  and  the  distress  having  been  so  made,  and  the  first  company 
having  demanded  a  surrender,  after  the  engine  had  been  removed  from  the 
defendant's  line,  with  the  declared  purpose  of  using  it  again  in  the  same  way, 
that  such  demand  was  illegal,  and  the  defendant  justified  in  not  acceding  to  it. 
See  also  New  Albany  &  Salem  Railroad  Co.  v.  Connelly,  7  Ind.  32;  Leviston 
V.  Junction  Railroad  Co.,  7  Ind.  597;  Lebanon  v.  Olcott,  1  N.  II.  339;  Victory 
V.  Fitzpatrick.  S  Ind.  281.  See,  also,  Colcough  v.  Nashville  &  Nortli western 
Railroad  Co.,  2  Head,  171;  Brown  v.  Beatty,  34  Miss.  227;  Indiana  Central 
Railroad  Co.  i'.  Oakes,  20  Ind.  9. 

-  Watkins  v.  Great  Northern  Railway  Co.,  12  Q.  B.  9G1 ;  s.  c.  G  Eng.  L. 
&  Eq.  179;  Dean  v.  Sullivan  Railroad  Co.,  2  Fost.  N.  II.  310;  s.  c.  1  Am. 

(/')  Burlington  &  IMissouri  River  421.  And  see  St.  Joseph  &  Denver 
Railroad   Co.    v.   Schluntz,    14    Neb.     Railroad  Co.  v.   Callcndor,   13   Kan. 

[•335] 


350  EMINENT   DOMAIN.  [PART   III. 

*  3.  And  the  courts  of  equity  will  in  many  cases  interfere  by 
injunction,  where  railway  companies  are  proceeding  to  take  land 
contrary  to  the  provisions  of  the  act  of  parliament.^ 

4.  In  the  House  of  Lords,  in  one  case,'^  this  principle  is  very 
extensively  discussed,  although  not  arising  in  the  case  of  a  rail- 
way, or  where  the  land  itself  was  proposed  to  be  taken.     But 

Raihv.  Cas.  214;  Lichfield  v.  Simpson,  8  Q.  B.  G5;  Furniss  v.  Hudson  River 
Railroad  Co.,  5  Sandf.  5  51 ;  Turner  v.  Sheffield  &  Rotherham  Railway  Co.,  10 
M.  &  W.  425.  In  the  last  named  case,  the  injury  complained  of  was  the  obstruc- 
tion of  ancient  lights  by  the  erection  of  the  company's  statiou-house ;  and  the 
dust,  &c.,  from  the  station-house  and  embankment  drifting  into  the  plaintiff's 
house.  The  plaintiff's  house  not  being  on  the  schedule  attached  to  the  bill, 
the  company  had  no  right  under  the  act  to  take  it,  or  injuriously  to  affect  it. 
So  that  the  parties  stood  as  at  common  law.  See  also  Shand  ik  Henderson, 
2  Dowl.  P.  C.  519;  Davis  v.  London  &  Blackwall  Railway  Co.,  2  Scott  N.  R. 
74;  s.  c.  2  Railw.  Cas.  308. 

8  Stone  V.  Commercial  Railway  Co.,  9  Sim.  621;  s.  c.  1  Railw.  Cas.  375; 
Lord  Chancellor  in  Man.ser  u.  Railway  Co.,  2  Railw.  Cas.  380,  391;  Priestly 
V.  Manchester  &  Leeds  Railway  Co.,  4  Y.  &  Col.  Ex.  68;  s.  c  2  Railw. 
Cas.  134;  Lowdon  &  Birmingham  Railway  Co.  v.  Grand  Junction  Canal  Co., 
1  Railw.  Cas.  224.  In  this  case,  as  well  as  the  last  preceding,  it  is  said  the 
company  is  to  be  the  judge  of  the  most  feasible  mode  of  carrying  forward  its 
own  operations,  and  is  not  to  be  called  to  account  for  the  exercise  of  this  dis- 
cretion, so  long  as  it  acts  bonajide,  and  with  common  prudence.  But  it  affords 
no  just  ground  of  equitable  interference,  that  the  special  tribunal,  provided  by 
statute  to  have  exclusive  jurisdiction  of  certain  claims,  is  altogether  incompe- 
tent to  decide  such  questions  as  naturally  arise.  If  any  such  defect  exists,  the 
legislature  alone  can  afford  redress.  Barnsley  Canal  Co.  v.  Twibell,  7  Beav. 
19;  s.  c.  3  Railw.  Cas.  471.  Nor  is  the  land-owner  entitled  to  maintain  a 
common-law  action,  because  he  refused  to  join  in  the  proceedings  under  the 
statute,  the  company  having  proceeded  ex  parte,  and  caused  an  appraisal,  and 
deposited  the  sum  awarded  for  compensation.  Hueston  r.  Eaton  &  Hamilton 
Railroad  Co.,  4  Ohio  St.  685.  See  also  "Western  Maryland  Railroad  Co.  v. 
Owings,  15  Md.  199;  Sturtevant  v.  Milwaukee,  "Watertown,  &  Baraboo  Valley 
Railroad  Co.,  11  Wis.  61;  Powers  v.  Bears,  12  Wis.  213;  Davis  v.  La  Crosise 
&  Milwaukee  Railroad  Co.,  12  W^is.  16;  Burns  v.  Milwaukee  &  Mississippi 
Railroad  Co.,  9  Wis.  450. 

*  Imperial  Gas  Light  &  Coke  Co.  v.  Broadbent,  7  H.  L.  Cas.  606;  s.  c.  5 
Jur.  N.  s.  1319. 

496;    McLenden   r.    Atlanta  &   West  the  company  enter  and  construct  its 

Point  Railroad  Co.,  54  Ga.  293;  Dun-  road,   he   cannot    maintain    tre.spass, 

lap  V.  Toledo,  Ann  Arbor,  &  Grand  but  onh'  proceed  under  the  statute  for 

Trunk  Railway  Co.,  50  Mich.  470.  compensation.     Hanlin  v.  Chicago  & 

But  where  the  owner  of  land  con-  Northwestern  Railway  Co.,  61  Wis. 

sents  either  expressly  or  tacitly  that  515. 
[*336J 


§  81.]  STATUTE   REMEDY    EXCLUSIVE.  351 

here  the  injury  comjjlained  of  was,  that  the  company's  works,  in 
the  manner  in  which  they  had  been  carried  on,  rendered  tlie  re- 
spondent's land  useless.  This  was  done  by  means  of  the  gas 
escaj)ing  from  tlie  company's  works  deadening  the  life  of  vegeta- 
tion, the  respondent  being  a  market-gardener.  The  rcsj)ondent 
had  brought  an  action  against  the  company  for  the  nuisance, 
which  by  agreement,  upon  the  suggestion  of  the  court,  had  been 
n-ferred  to  an  arbitrator,  who  had  reported  damages,  as  having 
accrued  in  the  mode  complained  of,  to  a  considerable  extent. 
*  The  comjiany  were  now  proceeding  to  make  a  very  extensive  ad- 
dition to  their  works,  when  the  respondent  obtained  an  injunction 
against  them,  M'hich,  upon  final  hearing  before  the  Chancellor, 
assisted  by  the  common-law  judges,  had  been  made  perpetual,^ 
and  the  question  was  then  a])j)calcd  by  the  company  into  the 
House  of  Lords. 

6.  It  was  here  held,  affirming  the  decision  below,  that  in  such 
case  the  plaintiff  in  equity  cannot  claim  a  perpetual  injunction, 
until  his  right  is  first  established  at  law.  But  this  was  sullicicntly 
dune,  in  the  present  case,  by  the  award  of  the  arbitrator.  IJut 
after  the  right  is  once  established  at  law,  it  is  the  province  of  tlie 
equity  judge  to  determine  how  far  the  cause  of  complaint  may 
have  been  removed  by  any  subsequent  alteration  of  the  works ; 
and  this  question  will  not  be  referred  to  a  trial  at  law. 

G.  It  was  also  held  here  that  the  respondent  had  no  remedy 
under  the  statute,  and  consequently,  although  such  statutory 
remedy  to  its  extent  was  necessarily  exclusive  of  all  others,  yet 
where  the  wrong  done  is  not  authorized  by  these  powers,  the  com- 
mon-law right  of  action  still  remained.'^ 

7.  The  general  principle  that  the  statute  remedy,  as  far  as  it 
extends,  is  exclusive,  seems  to  be  universally  adhered  to  in  the 
American  courts,  with  slight  modifications,  some  of  which  are, 
and  some  are  not,  perhaps,  entirely  consistent  with  the  mainte- 
nance of  the  general  rulc.'^ 

^  8.  c.  before  Vice  Chancellor  Wood,  2  Jur.  x.  s.  1132;  before  the  Chan- 
cellor, 3  Jur,  N.  s.  221. 

"  See  Hole  v.  Barlow,  4  C.  B.  x.  s.  334;  Attorney-General  r.  Sheffield  Gas 
Consumers'  Co.,  3  De  G.  ]M.  &  G.  304;  Attorney-Goneral  v.  Nicliol.  16  Ves. 
338;  Wynstanley  r.  Lee,  2  Swanst.  333;  Haines  v.  Taylor,  10  Beav.  T-'i. 

'  Pettibone  v.  La  Crosse  &  Milwaukee  Railroad  Co.,  14  Wis.  443;  Vilas  v. 
Milwaukee  &  Mississippi  Railroad  Co.,  15  Wis.  233. 

[*337J 


352 


EMINENT   DOMAIN. 


[part   III. 


8.  It  was  held  in  one  case,  where  the  land  damages  had  been 
assessed  under  the  statute,  and  judgment  rendered  for  the  amount 
against  the  company,  that  a  subsequent  company,  formed  by  the 
mortgagees  of  the  first  company,  were  responsible  for  the  amount 
of  such  judgment,  if  they  continued  to  operate  the  road  and  use 
the  right  of  way  for  which  the  judgment  was  rendered.^  But  this 
seems  a  considerable  stretch  of  construction,  although  eminently 
just  and  reasonable. 

*SECTION   XX. 
Lands  injuriously  affected. 


1.  Obstruction  of  way,  loss  of  custom. 

2.  Equity  will  not  enjoin  the  exercise  of 

a  clear  legal  right. 

3.  Company  liable  for  building  railway, 

so  as  to  cut  off  wharf. 

4.  But  not  for  crossing  highway  near  a 

dwelling  on  level. 

5.  English  statute  only  includes  damages 

by  construction  only,  not  by  use. 

6.  Equity  will  not  enjoin  the  assertion  of 

a  doubtful  claim. 

7.  Damages  unforeseen  at  the  time  of  the 

appraisal,  recoverable  in  England. 

8.  Injuries    to    ferry   and    towing    path 

compensated. 


9,  10.   Remote  injuries  not   within  the 
statute. 

11.  Damages  compensated,  under  statute 

of  Massachusetts. 

12.  Damages  not  compensated,  as  being 

too  remote. 

13.  Negligence  in   construction    remedi- 

able at  common  law. 

14.  So  of  neglect  to  repair. 

15.  Recovery  under  the  statute,  &c. 

16.  Possession  by  company,  notice  of  ex- 

tent of  title. 

17.  Companies   have  riglit  to  exclusi»i; 

possession  of  roadway. 


§  82.  1.  The  right  of  a  party  to  claim  consequential  damages, 
where  his  land  was  not  taken,  but  only  injuriously  affected,  (a)  was 

8  Pfeifer  o.  Sheboygan  &  Fond  du  Lac  Railroad  Co.,  18  Wis.  155. 


(ff)  As  to  injuries  to  abutting  own- 
ers from  the  construction,  &c.,  of  rail- 
roads in  streets  and  highways,  by  way 
of  embankments,  excavations,  chang- 
ing of  grades,  from  smoke,  cinders, 
dust,  &c.,  see  supra,  §  76. 

"Where  land  is  protected  from  over- 
flow by  a  ridge  on  land  of  an  adjoin- 
ing proprietor,  the  owner  may  recover 
for  a  cutting  thereof  by  a  railway  so 
that  the  water  flows  through  in  times 
of  flood,  and  deposits  sand,  gravel,  &c. 

[*338] 


Eaton  V.  Boston,  Concord,  &  Montreal 
Railroad  Co.,  51  N.  II.  504. 

A  riparian  owner,  cut  off  from  ac- 
cess to  a  navigable  river  by  a  highway 
built  between  high  water  and  low  water 
mark,  has  no  claim  to  damages.  Tom- 
lin  r.  Dubuque  Railway  Co.,  32  Iowa, 
106.  And  possible  damages  to  bush 
land  from  greater  exposure  to  winds 
and  storms  and  greater  liability  to  inju- 
ry by  fire  from  engines,  are  too  remot';. 
Ontario  &  Quebec  Railway  Co.  v.  Ta\- 


§  82.]  LANDS    INJURIOUSLY    AFFECTED.  353 

very  thoroughly  discussed  by  Lord  Truro,  Chancellor,  in  ono 
casc,^  where  the  defendant,  a  furrier,  claimed  damage,  in  conse- 
quence of  the  dust  and  dirt,  occasioned  by  the  company,  having 
injured  his  goods,  and  that  his  customers  had  been  comiielled,  by 
the  obstruction  caused  by  the  company's  works,  to  (piit  the  side  of 
tiie  road  upon  which  the  defendant's  shop  was  situated,  before 
they  arrived  at  that  point,  and  cross  the  street  to  get  along,  by 
reason  wdiereof  he  had  lost  custom.  The  defendant  also  claimed 
that  the  company  had  obstructed  a  passage  to  his  buildings,  by 
which  he  had  an  entrance  to  the  back  part  of  his  ])remiscs.  The 
Lord  Chancellor  considered  that  if  the  party  had  any  claim  for 
coniiiensation  it  was  to  be  procured  under  the  statute  and  esti- 
mated by  the  sheriff's  jury,  and  dissolved  the  injunction.  It 
seems  now  to  be  settled  by  the  decision  of  the  House  of  Lords 
(Ricket  V.  Metropolitan  Railway),  that  unless  the  injury  is  of  such 
a  nature  as  to  be  actionable  aside  from  the  statute,  it  will  not 
entitle  the  i)arty  to  compensation  under  the  statute,  and  that  in- 
terruption of  business  therefore,  by  making  access  more  incon- 
venient, will  not  entitle  the  party  to  such  corajjensation.'^  (i)  But 
where  the  *  works  of  a  railway  diminish  the  light  of  premises,  al- 
though the  pecuniary  value  of  plaintiff's  interest  is  not  diminished, 
property  in  the  neighborhood  generally  having  advanced  in  ])rice, 
the  owner  is  entitled  to  compensation.^     Where  the  value  of  a 

*  East  &  West  India  Docks  &  Birmingham  Junction  Railway  Co.  v.  Gattke, 
3  Macn.  &  G.  15.');  s.  c.  3  Kng.  L.  &  Eq.  59. 

2  Law  Rep.  2  II.  L.  175. 

'  Eagle  V.  Charing  Cross  Railway  Co.,  Law  Rep.  2  C.  P.  G38.  A.  owned 
a  house  on  a  liighway.  A  railway  company,  inider  powers  given  them  by 
Rtjitute,  made  an  embankment  on  the  highway  opposite  the  house,  thereby 
narrowing  tlie  road  from  fifty  to  thirty-three  feet,  thus  materially  diminishing 
the  value  of  the  liouse  for  sale  or  letting,  and  obstructing  the  access  of  liglit 
and  air.  It  was  held  that  A.  had  sustained  particular  dam.ige  fiom  thework.s; 
that  the  damage  would  have  been  actionable  if  not  authorized  by  statute;  that 

lor,  6  Ont.  Q.  B.  100.  Nor  is  the  com-  r.  Walker,  Law  Rep.  7  Ap.  Cas.  2.'>9; 
pany  liable  for  an  obstruction  to  the  and  see  also  Glover  r.  North  Stafford- 
flow  of  more  surface  water.  Ilanlin  v.  shire  Railway  Co.,  10  Q.  B.  91'2,  hold- 
Cliioago  &  Northwestern  Railway  Co.,  ing  lands  injuriously  affected  where  a 
61  Wis.  515;  Kansas  City  &  Emporia  private  right  of  way  over  a  higliway 
Railroad  Co.  r.  Riley,  20  Am.  &  Eng.  crossed  by  the  road,  appurtenant  to  the 
Railw.  Cas.  IIG.  land,  was  rendered  less  convenient,  and 
(/')  But  see  Caledonian  Railway  Co.  the  value  of  the  land  thereby  lessened. 
VOL.  I. -23  [*339] 


354  EMINENT   DOMAIN.  [PAKT  III, 

house  is  lessened  by  railway  works  producing  noise,  smoke,  and 
vibration,  the  party  is  entitled  to  compensation  under  the  statutie.* 
But  where  the  railway  company  lowered  a  higliway  several  feet, 
thereby  greatly  obstructing  access  to  plaintiff's  dwelling,  and 
obliging  him  to  make  use  of  a  ladder  for  that  purpose,  it  was  held 
that  no  claim  could  be  maintained  under  that  clause  in  the  statute 
for  injuriously  affecting  land,  the  injury  complained  of  being  one 
of  a  permanent  nature,  and  therefore  the  subject  of  compensation 
under  the  general  provision  for  land  damages.^  But  where  tiie 
works  of  a  railway  intercepted  water  which  would  have  percolated 
through  the  strata  of  the  earth  into  plaintiff's  well,  and  also 
drained  off  water  which  had  reached  the  well  by  such  perco- 
lation,^ (c)  it  was  held  the  land-owner  had  no  remedy  either 
under  the  statute  or  at  common  law. 

2.  This  case  was  an  application,  by  the  company,  for  an  injunc- 
tion to  restrain  the  party  from  proceeding  under  the  statute,  and 
the  court  held,  that  as  the  party  had  a  clear  legal  right,  under  the 
act  of  parliament,  they  could  not  be  deprived  of  pursuing  it  in  the 
*  mode  pointed  out,  and  fully  affirmed  the  views  of  Lord  Denman, 
C.  J.,  in  Regina  v.  Eastern  Counties  Railway  Company,'^  where 

the  injury  done  was  an  injury  to  his  estate,  and  not  a  mere  injury  to  him 
personally  or  to  his  trade;  and  that,  these  three  things  concurring,  he  was 
entitled  to  compensation  under  statute  8  Vict.  cc.  18,  20.  Beckett  v.  Midland 
Railway  Co.,  Law  Rep.  3  C.  P.  82. 

*  Brand  v.  Hammersmith  &  City  Railway  Co.,  Law  Rep.  2  Q.  B.  223;  3.  C. 
reversed  in  Law  Rep.  4  H.  L.  17L     See  also  infra,  pi.  8,  note  IG. 

^  Moore  v.  Great  Southern  &  Western  Railway  Co.,  10  Ir.  Com.  Law,  46; 
Tuohey  v.  Great  Southern  &  Western  Railway  Co.,  10  Ir.  Com.  Law,  98.  But 
the  English  courts  seem  to  consider  that  compensation  in  such  a  case  may  be 
given  under  the  provision  for  damages  where  land  is  injuriously  affected. 
Chamberlain  v.  West  End  of  London  &  Crystal  Palace  Railway  Co.,  2  B.  & 
S.  617;  s.  c.  3  B.  &  S.  7GS;  8  Jur.  n.  s.  93.). 

«  New  River  Co.  v.  Johnson,  2  Ellis  &  E.  435;  s.  c.  6  Jur.  n.  s.  374.  This 
question  is  a  good  deal  discussed  in  a  later  case,  Regina  v.  Metropolitan  Board 
of  Works,  3  B.  &  S.  710,  where  it  was  held  that  the  railway  company  was  not 
responsible  for  underground  currents  of  water  intercepted  by  its  works,  either 
at  common  law  or  under  the  statute. 

'  2  Q.  B.  317.  See  infra,  §  99.  Here  the  court  held  that  the  injuries 
complained  of  clearly  came  within  the  act,  and  Lord  Dknman,  in  closing  his 


(c)  As  to  diversion  or  obstruction  of  streams  or  of  surface  water,  see  supra, 
§§78,79.   . 
[*340] 


§  82.]  LANDS   INJURIOUSLY    AFFECTED.  866 

the  damage  claimed  was  by  lowering  a  road  upon  which  the  land 
abutted,  so  as  to  impede  the  entrance  to  the  land  and  comj)el  the 
owner  to  build  new  fences. 

o.  The  construction  of  a  railway  across  flats,  in  front  of  i)lain- 
tifl's  wharf,  gives  him  a  rigiit  to  damage  under  the  statute  of 
Massachusetts,  although  the  wharf  itself  remained  uninjured.**  (^Z) 
But  the  charter  of  a  railway  company  having  authorized  them  to 
make  certain  sj)ecined  erections  between  the  channels  of  two  rivers, 
and  such  erections  having  so  changed  the  currents  of  the  rivers  as 
to  render  more  sea-wall  necessary  to  secure  certain  wharves  and 
flats  in  the  vicinity,  it  was  held  that  the  damage  thereby  occasioned 
was  damnum  absque  injuria.^ 

4.  One  cannot  claim  damage  of  a  railway  company,  by  reason 
of  their  track  crossing  a  public  highway  near  his  dwelling, 
upon  a  level,  the  highway  being  the  principal  approach  to  his 
grounds.^*' 

5.  It  is  held  that  the  English  statute,^^  (e)  giving  compensa- 

opinion,  makes  a  very  significant  reply  to  a  class  of  arguments,  not  uncommon 
on  any  subjects.  "  Before  we  conclude,  we  .shall  briefly  advert  to  an  argu- 
ment much  pressed  upon  us;  that  if  we  make  this  rule  absolute,  any  injury  to 
land,  at  any  distance  from  the  line  of  railway,  may  become  the  subject  of  com- 
pensation. If  extreme  cases  should  arise,  we  shall  know  how  to  deal  with 
them;  but  in  the  present  instance,  the  alleged  injury  is  to  land  adjoining  a 
road,  which  has  been  'lowered'  under  the  provisions  of  the  act,  and  which  is 
therefore  land  irtjuriousli/  affecled,  by  an  act  expressly  within  the  powers  con- 
ferred  by  the  company." 

*  Ashby  V.  Eastern  Railroad  Co.,  .5  Met.  3GS;  s.  c.  1  Am.  Railw.  Cas.  :]56. 
And  in  Bell  v.  Hull  &  Selby  Railway  Co.,  2  Railw.  Cas.  279,  a  similar  decision 
18  made  under  the  English  statute.  But  see  Gould  v.  Hudson  River  Railroad 
Co  ,  6  N.  Y.  522. 

^  Fitchburg  Railroad  Co.  v.  Boston  &  Maine  Railroad  Co.,  3  Cush.  58;  8.  c 
1  Am.  Railw.  Cas.  508;  supra,  §  75. 

1"  Caledonian  Railway  Co.  v.  Ogilvy,  2  Macq.  Ap.  Cas.  229;  s.  c.  29  Eng. 
L.  &  Eq.  22. 

"  Law  T.,  February,  1857,  329. 

(<l)    So  where  access  to  a  part  of  the  with  an  adjoining  owner,  terminable 

flats  from  tide  water  is  cut  off.    Dnny  on  notice  by  either  party,  for  annual 

p.  Midland  Railroad  Co.,  127  Mass.  commutation    for    injuries    to    stock 

571.  from  bullets  going  over  his  land,  ho 

(f)  Under  the  Enp;lish  statute  where  may  recover  of  a  railway  company  for 

one  has  a  range  on  his  own  land  for  running  a  railway  through  the  adjoin- 

rifle    practice,   and    an    arrangement  ing  land,  and  so  rendering  it  impossi- 

[*340] 


356  EMINENT   DOMAIN.  [PART  III. 

tion,  where  lands  are  injuriously  affected,  was  intended  to  include 
only  such  damages  as  were  caused  by  the  erection  of  the  company's 
works,  and  not  such  as  might  in  future  be  caused  by  the  use  of 
the  works,  this  being  the  case  of  Gas  Works,  and  the  68th  section 
of  the  Land  Clauses  Acts  *  being  made  a  part  of  the  company's 
special  act.  But  this  certainly  could  not  extend  to  the  ordinary 
use  of  a  railway,  which  is  the  only  or  the  principal  mode  of  injuri- 
ously affecting  lands  not  taken,  and  which  could  be  as  strictly  esti- 
mated, at  the  time  of  the  company's  works  being  erected,  as  from 
time  to  time  thereafter. 

6.  In  one  case,^^  where  the  lessee  of  an  inn  and  premises, 
situated  near  a  tunnel  on  the  company's  road,  claimed  damages, 
because  the  vibration  caused  by  the  trains  prevented  his  keeping 
his  beer  in  the  cellar  in  a  fit  state  for  his  customers,  and  the  value 
of  the  house  was  thereby  lessened,  being  rendered  unlit  for  a 
public-house,  and  the  plaintiffs  moved  for  an  injunction  to  re- 
strain the  defendant  from  proceeding  to  assess  damages  under  the 
statute,  the  Lord  Chancellor  denied  the  motion,  upon  the  ground 
that  the  remedy  at  law  was  altogether  adequate.  But  his  lord- 
ship intimated  a  very  decided  opinion  that  no  such  damages 
could  be  recovered.  He  says,  "  Whether  an  action  will  lie  on  be- 
half of  a  man  who  sustains  a  private  injury,  by  the  exercise  of 
parliamentary  powers,  done  judiciously  and  cautiously,  is  not  an 
easy  question,  or  rather  it  is  not  easy  to  come  to  the  conclusion 
that  an  action  will  lie.  I  entertain  a  decided  opinion  (probably, 
however,  erroneous)  that  no  such  action  will  lie."  ^^ 

7.  And  where  the  plaintiff 's  damages  for  land  taken  by  the 
company,  and  by  severance  and  otherwise,  were  determined  by 

*2  London  &  Northwestern  Railway  Co.  ?;.  Bradley,  3  Macn.  &  G.  366; 
s.  c.  6  Railw.  Cas.  551;  Hammersmith  Railway  Co.  v.  Brand,  Law  Rep.  4 
H.  L   171. 

13  Hatch  V.  Vermont  Central  Railroad  Co.,  25  Vt.  49;  s.  c.  28  Vt.  142.  The 
difficulty  of  access  to  a  mill,  by  reason  of  the  frequent  passing  of  trains 
rendering  it  unsafe,  is  proper  to  be  considered  in  estimating  land  damages. 
Western  Pennsylvania  Railroad  Co.  v.  Hill,  56  Penn.  St.  460. 

ble  for  him  to  continue  rifle  practice,  being  cut  off  from  the  dock  by  the 

Holt  V.  Gas  Light  &  Coke  Co.,  Law  erection  of  the  Thames  Embankment. 

Rep.  7  Q.  B.  728.     And  so  a  lessee  of  McCarthy  v.  Metropolitan  Board,  Law 

premises  on  the  Thames  in  London  Rep.  7  C.  P.  508. 
opposite  a  draw  dock  may  recover  for 

[*341] 


§  82.]  LANDS    INJURIOUSLY    AFFECTED.  857 

an  arbitrator,^*  but  from  the  road  being  built  across  certain  flats, 
with  insuClicient  openings,  the  waters  became  dammed  up  and  in- 
jured the  plaintiff's  remaining  lands,  it  was  held,  he  was  entitled 
to  recover  "  as  for  an  unforeseen  injury  arising  from  the  manner 
in  which  the  railway  ivas  constructed^  But  it  is  here  said,  "  The 
•  company  might,  by  erecting  their  works  with  proper  caution, 
have  avoided  the  injury."  It  seems  this  is  the  only  ground  of  an 
action. 

8.  In  a  doubtful  case  the  court  issued  an  alternative  mandamus 
and  required  a  return  of  the  facts.^^  So,  too,  a  party  whose  ferry 
has  been  materially  lessened  in  value,  by  obstructing  access  to  it, 
may  recover  damages  of  the  company  under  the  statute.^^  So,  too, 
if  a  towing-path  be  obstructed,  or  the  navigation  diverted  from  it, 
the  owner  under  a  similar  statute  may  have  compensation. ^^     So, 

"  Lawrence  r.  Great  Northern  Railway  Co.,  16  Q.  B.  G43;  s.  c.  G  Railw. 
Cas.  G5G;  8.  c.  4  Eng.  L.  &  Eq.  2G5;  svprn,  §  79,  note  G;  §  74,  note  5;  Lanca- 
shire &  Yorkshire  Railway  Co.  v.  Evans,  15  Beav.  322;  s.  c.  19  Eng.  L.  &  Eq. 
295.  Under  most  of  the  American  statutes,  the  damages,  as  well  prospective 
as  present,  must  be  assessed  at  once,  and  no  recovery  can  be  had  for  unfore- 
seen injury,  more  than  in  any  case  of  a  recovery  of  damages  for  a  tort.  But 
in  the  case  of  Lancashire  &  Yorksiiire  Railway  Co.  v.  Evans,  it  is  obvious, 
that  the  English  courts  now  regard  the  land-owner  as  entitled  to  make  new 
claims,  from  time  to  time,  as  they  occur,  for  any  injurious  consequence  of  the 
constrnction  of  the  works.  For  any  unlawful  act,  in  the  construction  or  use 
of  the  works,  an  action  at  common  law  is  the  proper  remedy. 

**   Queen   v.  North  Union  Railway  Co.,  1  Railw.  Cas.  729. 

"  In  re  Cooling,  19  Law  J.  n.  s.  Q.  B.  2.");  s.  c.  uom.  Cooling  v.  Great 
Northern  Railway  Co.,  15  Q.  B.  48G;  Hodges  Railw.  277.  It  is  said  here  that 
a  ferry  is  different  from  a  public-house,  whose  custom  is  said  to  be  injured  by 
obstructing  the  travel  and  access  to  the  house,  by  cutting  through  thorough- 
fares leading  to  it,  which,  it  has  been  held,  is  no  ground  for  damage  under  a 
similar  statute.  King  v.  London  Dock  Co.,  5  A.  &  E.  1G:5.  But  this  case  is  con- 
sidered as  overruled  by  Regina  v.  Eastern  Counties  Railway  Co.,  2  Q.  B.  347; 
Chamberlain  v.  West  End  of  London  &  Crystal  Palace  Railway  Co.,  2  B.  &  S. 
(517;  s.  c.  3  B.  &  S.  768;  8  Jur.  n.  s.  935.  AVhere  a  railway  company  was  em- 
powered by  act  of  parliament  to  construct  a  bridge  and  to  include  a  passage  for 
foot-passengers  and  take  toll  thereon,  so  near  an  ancient  ferry  as  greatly  to  re- 
duce its  traffic,  it  was  held  that  the  ferry  being  a  franchi.se,  and  therefore  a  he- 
reditament, was  "  lands  "  within  the  meaning  of  the  act  of  parliament  allowing 
compensation  for  "lands  injuriously  affected"  by  the  construction  of  a  railway. 
Queen  v.  Cambrian  Railway  Co.,  Law  Rep.  G  Q.  B.  422;  Ricket  c.  Metropoli- 
tan Railway  Co.,  Law  Rep  2  IL  L.  175,  and  Brand  v.  Hammersmith  Rail- 
way Co.,  Law  Rep.  4  H.  L.  171,  were  distinguished  from  tlie  present  case. 

"  King  V.  Commissioners  of  Thames  &  Isis,  5  A.  &  E.  SOt. 

[•342] 


358  EMINENT   DOMAIN.  [PART   III. 

also,  an  occasional  flooding  of  lands,  caused  by  a  proper  execution 
of  parliamentary  powers,  is  within  the  remedy  given  by  statute.^^ 

9.  Some  questions  under  this  head  have  arisen,  in  regard  to 
mines  and  minerals,  not  of  sufficient  importance  to  be  stated  in 
detail.^^  Where  the  damage  resulted  from  the  company  turning  a 
brook,  the  court  ordered  a  mandamus.^''  But  brewers,  accustomed 
to  take  water  from  a  public  river,  are  not  entitled  to  receive  com- 
pensation when  the  waters  were  deteriorated  by  the  works  of  a 
dock  company .21 

10.  It  was  held  that  a  tithe-owner  is  not  entitled  to  compen- 
sation *  unless  the  act  contain  an  indemnity  in  his  favor.22  The 
interest  of  a  tithe-owner  is  too  remote  and  incidental  to  be  the 
subject  of  general  indemnity.  It  often  forms  the  basis  of  special 
statutory  provisions  for  indemnity. 

11.  In  a  well-considered  case,  the  rule  in  regard  to  what 
damage  is  to  be  included  under  the  terms  "  lands  injuriously 
affected,"  or  equivalent  terms,  is  thus  laid  down :  "  All  direct 
damage  to  real  estate  by  passing  over  it,  or  part  of  it,  or  which 
affects  the  estate  directly,  although  it  does  not  pass  over  it,  as  by 
a  deep  cut  or  high  embankment,  so  near  lands  or  buildings  as  to 
prevent  or  diminish  the  use  of  them,  by  endangering  the  fall  of 
buildings,  the  caving  of  earth,  the  draining  of  wells,  the  diversion 
of  water-courses,"  by  the  proper  erection  and  maintenance  of  the 

"  Ware  v.  Regent's  Canal  Co.,  3  De  G.  &  J.  212. 

19  P'enton  v.  Trent  &  Mersey  Navigation  Co.,  9  i\I.  &  W.  203;  Cromford 
Canal  Co.  v.  Cutts,  5  Railw.  Cas.  442;  King  v.  Leeds  &  Selby  Railway  Co., 
3  A.  &  E.  683. 

20  Regina  v.  North  Midland  Railway  Co.,  11  A.  &  E.  955;  s.  c.  2  Railw. 
Cas.  1. 

'^1  King  V.  Bristol  Dock  Co.,  12  East,  429.  But  where  mines  below  the  com- 
pany's works  are  injured  in  consequence  of  negligent  or  imperfect  construc- 
tion, &c.,  of  the  company's  structures  and  cuttings,  the  owner  may  maintain  a 
common-law  action  against  the  company.  Bagnall  v.  London  &  Northwestern 
Railway  Co.,  7  H.  &  N.  423.  Affirmed  in  Exchequer  Chamber,  31  Law  J. 
4S0.  See  also  Regina  v.  Fisher,  3  B.  &  S.  191;  s.  c.  9  Jur.  n.  s.  571;  Elliot 
V.  Northeastern  Railway  Co.,  9  Jur.  n.  s.  555;  s.  c.  10  H.  L.  Cas.  333. 

22  Rex  V.  Commissioners  of  Nene  Outfall,  9  B.  &  C.  875;  London  &  Black- 
wall  Railway  Co.  v.  Letts,  3  H.  L.  Cas.  470;  s.  c.  8  Eng.  L.  &  Eq.  1 ;  Hodges 
Railw.  289,  n.  (m).  The  taking  of  lands  compulsorily  by  a  railway  company 
and  the  erection  of  its  works  thereon  is  no  breach  of  a  covenant  by  the  owner 
not  to  build  on  the  land.  Baily  v.  De  Crespigny,  17  W.  R.  494;  s.  c.  Law 
Rep.  4  Q.  B.  180. 
[*343] 


§  82.]  LANDS   INJURIOUSLY    AFFECTED.  359 

company's  works.  "  Also,  as  beini;  of  like  character,  blasting  a 
leil.i2;c  of  rocks  so  near  houses  or  buildings  as  to  cause  damage  ; 
running  a  track  so  near  as  to  cause  imminent  and  appreciable 
danger  by  (ire  ;  obliterating  or  obstructing  private  ways  leading  to 
iiouses  or  buildings,"  —  all  these,  and  some  others,  doubtless,  aro 
included. 

12.  "  But  that  no  damage  can  be  assessed  for  losses  arising 
directly  or  indirectly  from  the  diversion  of  travel,  the  loss  of  cus- 
tom to  tuiiijiikcs,  canals,  bridges,  taverns,  coach  companies,  and 
the  like;  nor  for  the  inconveniences  which  the  community  may 
suffer  in  common,  from  a  somewhat  less  convenient  and  beneCicial 
use  of  puljlic  and  private  ways,  from  the  rapid  and  dangerous 
crossings  of  the  public  highways,  arising  from  the  usual  and  ordi- 
nary action  of  railroads  and  railroad  trains,  and  their  natural 
incidents."  23  (/) 

*  13.  It  is  held  also  in  this  case,  that  no  damages  can  be  assessed 
under  the  statute  for  cutting  through  a  watercourse,  in  making 
an  embankment  without  making  a  culvert,  whereby  the  water  is 
made  to  flow  back  and  injure  the  plaintiff's  land,  at  a  distance 
from  the  railway,  no  part  of  which  is  taken,  the  remedy  being  by 
action  at  common  law."^ 

^^  Locks  &  Canals  Proprietors  v.  Nashua  &  Lowell  Railroad  Co.,  10  Cash. 
385,  391,  .392,  per  Siiaw,  C.  J.  Nor  is  one  whose  lands  lie  near  a  railway 
line,  etititled  to  compensation,  for  being  injuriously  affected  by  persons  in 
the  trains  overlooking  the  grounds,  thus  rendering  them  less  (•onifortahle  and 
secluded  for  the  walks  of  the  family  and  visitors.  Nor  can  he  claim  compen- 
sation for  vibration  of  the  ground  caused  by  the  use  of  the  road,  the  statute 
only  extending  to  damages  caused  by  the  conslt-uclion  of  the  works.  IJegina  v. 
Southeastern  Railway  Co.,  7  Ellis  &  B.  6G0;  supra,  pl.  5.  But  actual  injury 
during  the  construction  of  a  railway,  by  vibration  caused  by  the  balliust  trains, 
is  to  be  compensated;  but  by  Cami'Kpm.l,  C  J.,  it  is  said  such  vibration  caused 
by  running  trains  after  the  road  is  completed  will  merit  a  difffront  considera- 
tion, lb.  See  also  Croft  v.  London  &  Northwestern  Railway  Co.,  o  B.  &  S. 
436. 

(/)  Loss  of  custom  by  an  inn-  But  an  ancient  ferry  held  to  be  land.s 
keeper  not  compensated.  Queen  v.  under  statute  8  Vict.  c.  IS,  and  the 
Vaughan,  Law  Rep.  4  Q.  B.  190.  diversion  of  business  therefrom  by  a 
Nor  the  lessening  in  value  of  premises  railway  bridge  subject  for  comjiensa- 
by  reason  of  noise,  smoke,  cinders,  tion.  Queen  i'.  Camlirian  Railway 
&c.,  from  an  adjacent  engine-house.  Co..  Law  Rep.  0  Q.  B.,  4'2'J.  But 
Cogswell  v.  New  York,  New  Haven,  &  see  Hopkins  v.  (Ircat  Northern  Rail- 
Hartford  Railroad  Co.,  48  N.  Y.  31.  way  Co.,  Law  Rop.  2  Q.  B.  224. 

[•344j 


360  '  EMINENT   DOMAIN.  [PART  III. 

14.  And  where  the  company,  by  consent  of  the  land-owner, 
enters  upon  the  land  and  makes  the  requisite  erections,  which  are 
subsequently  conveyed  to  it  with  the  land  by  the  land-owners, 
it  was  held  such  grantor  is  not  estopped  from  claiming  damages 
resulting  from  want  of  proper  care  and  skill  in  constructing  the 
works,  or  from  neglect  to  keep  them  in  repair.^^ 

15.  Tlie  rule  of  the  English  courts  that  damages  can  only  be 
recovered  for  injuriously  affecting  land,  where  but  for  the  statute 
the  act  complained  of  would  be  just  ground  of  action  at  common 
law,  does  not  apply  where  part  of  the  land  is  taken  and  damages 
are  sought,  not  only  for  the  part  taken,  but  for  the  rest  of  the 
land  being  injuriously  affected,  either  by  severance  or  otherwise.^ 
And  it  was  here  held  that  the  owner  of  a  mill  was  entitled  to  have 
damages  assessed  to  him  for  the  increased  exposure  of  the  same 
to  fire  by  the  passage  of  the  company's  trains.  But  loss  of  trade 
caused  by  the  operations  of  the  company  during  the  construction 
of  their  works  is  not  damages  for  which  the  party  is  entitled  to 
compensation .2^  But  a  person  may  claim  damages  on  the  ground 
of  being  injuriously  affected  on  account  of  the  obstruction  or 
diversion  of  a  public  way  by  the  construction  of  the  works  of  a 
railway  .^'^ 

16.  The  owners  of  land  adjoining  a  railway  track  are  affected 
with  presumptive  notice  of  the  rights  of  the  company  from  long 
*  use,  the  same  as  in  regard  to  other  owners  in  possession.^  And 
equity  will  enjoin  an  adjoining  owner  to  a  railway  track  against 
making  erections  which  will  interfere  with  the  company  repairing 
its  track.29 

17.  It  seems  scarcely  needful  to  repeat,  what  has  been  so  often 

'*  Morris  Canal  &  Banking  Co.  v.  Ryerson,  3  Dutcher,  457;  Waterman 
p.  Connecticut  &Passutnpsic  Rivers  Railroad  Co.,  30  Vt.  GIO;  Lafayette  Plank- 
Road  Co.  V.  New  Albany  &  Salem  Railroad  Co.,  13  Ind.  00. 

25  Jn  re  Stockport,  Timperley,  &  Altringham  Railway  Co.,  10  Jur.  n.  s.  614. 

2s  Senior  v.  Metropolitan  Railway  Co.,  2  H.  &  C.  258;  Cameron  v.  Charing 
Cross  Railway  Co.,  IG  C.  B.  n.  s.  4-30;  overruled  in  Exchequer  Chamber  by 
Ricket  V.  Metropolitan  Railway  Co.,  5  B.  &  S.  149;  s.  c.  13  W.  R.  455,  where 
the  proposition  of  the  text  is  established.  But  see  s.  c.  Law  Rep.  2  H.  L. 
175,  where  the  doctrine  of  the  court  below  is  not  sustained. 

27  Wood  V.  Stourbridge  Railway  Co.,  16  C.  B.  n.  s.,  222.  See  also 
Boothby  v.  Androscoggin  &  Kennebec  Railroad  Co.,  51  Me.  318. 

2«  Macon  &  Western  Railroad  Co.  v.  McConnell,  27  Ga.  481. 

29  Cunningham  v.  Rome  Railroad  Co.,  27  Ga.  499. 
[*345] 


§83.] 


DIFFERENT   ESTATES   PROTECTED. 


861 


declared  by  tlic  courts,  that  railways  have  the  exchisivc  riglit  to 
possession  of  their  roadway,  and  to  exclude  all  intrusions  thereon, 
whether  from  persons  or  structures.^'' 


SECTION    XXI. 


Different  Estates  Protected. 


1.  Tenant's  goodwill  and  cliance  of  re- 

newal jirotcotcd. 

2.  Tenants  entitled  to  compensation  for 

change  of  location. 

3.  Cliurcli    property    in    England,    how 

estimated. 

4.  Tenant  not  entitled  to  sue,  as  owner 

of  private  way. 
6.  Heir  and  not  administrator  should  sue 

lor  compensation. 
6.  Lessor  and  lessee  both  entitled  to  com- 
pensation. 


7.  Right  of  way,  from  necessity,  pro- 

tected. 

8.  Mill-owner  entitled  to  action  for  ob- 

structing water. 

9.  Occupant  of  land  entitled  to  compen- 

sation. 

10.  Tenant,  without  power  of  alienation, 

forfeits   liis  estate,  by   license  to 
company. 

11.  Damages  accrued  not  transferred  by 

deed  of  land. 


§  83.  1.  The  English  statute  provides  for  the  protection  of  the 
interests  of  lessees  in  certain  cases.^  And  lessees  from  year  to 
year  liave  recovered,  for  the  good-will  of  the  premises,  which 
would  have  been  valuable  as  between  the  tenant  and  a  purchaser, 
although  it  was  not  a  legal  interest  as  against  the  landlord."'' 
But  not  when  the  tenancy  was  from  year  to  year,  determinable  at 
three  months'  notice,  with  a  stipulation  against  underletting  with- 
out leave.^  So,  too,  an  under-tenant  is  entitled  to  compensation 
for  good-will.^  But  in  a  lease  for  fourteen  years,  with  covenant 
to  yield  up  the  premises  at  the  end  of  the  term,  with  all  fixtures 
and  improvements,  where  the  company  suffered  the  lease  to  ex- 
])ire  and  *  then  turned  out  the  tenant,  held  that  he  was  entitled 
to  compensation  for  good-will  and  the  chance  of  bcnelioial  re- 
newal, but  not  for  improvements ;  but,  nevertheless,  these  might 

""  Railroad  Co.  t\  Hummell,  4t  Penn.  St.  375;  Harvey  r.  Lackawanna  & 
Bloonishurg  Railroad  Co.,  47  Penn.  St.  428. 

1  Statute  8  &  9  Vict.  c.  18,  §§  119-122;  8  &  9  Vict.  c.  20,  §  43. 
'  Ex  parte  Farlow,  2  B.   &  Ad.   311;  Palmer  v.    Hungerford  Market,   9 
A.  &  E.  463. 
.    *  Rex  V.  Hungerford  Market,  4  B.  &  Ad.  592. 

[♦346] 


362 


EMINENT   DOMAIN. 


[part  III. 


be  considered  by  the  jury  in  estimating  the  chance  of  beneficial 
renewal."*  (a) 

2.  The  loss  which  a  brewer  sustained  by  having  to  give  up  his 
business  till  he  could  procure  other  premises,  suitable  for  carrying 
it  on,  was  held  a  proper  subject  of  compensation  under  a  similar 
statute.^     Where  the  act  required  tenants  from  year  to  year  to 

4  Rex  V.  Ilunjrerford  Market,  4  B.  &  Ad.  592.  But  the  case  of  Rex  r. 
Liveipool  &  IManchester  Railway  Co.,  4  A.  &  E.  650,  seems  to  treat  a  similar 
estate  as  absolutely  gone,  at  the  end  of  the  term,  and  the  company  as  bound 
to  make  no  compensation.  But  where  the  company  stipulated  with  a  tenant, 
having  a  doubtful  right  of  renewal,  to  compensate  liim  for  the  same  on  his 
establishing  the  right,  and  subsequently  became  the  owner  of  the  reversion, 
it  was  held  that  the  tenant  might  maintain  a  bill  in  equity  for  the  declaration 
of  his  rights  as  to  renewal  and  compensation  therefor.  Bogg  v.  Midland 
Railway  Co.,  Law  Rep.  4  Eq.  .310. 

6  Jubb  V.  Hull  Dock  Co.,  9  Q.  B.  443. 


(a)  As  to  allowing  a  lessee  for  an- 
ticipated profits  of  the  land  taken, 
see  Brooks  v.  Venice  &  Carondelet 
Railway  Co.,  101  111.  33-3.  The  lessee 
of  a  fishery  injuriously  affected  held 
entitled  to  compensation.  Alexandria 
&  Fredericksburg  Railroad  Co.  v. 
Faunce,  31  Grat.  761. 

As  to  the  valuing  of  life  estates  in 
land  taken,  see  Pittsburg,  Virginia,  & 
Charleston  Railway  Co.  v.  Bentley, 
88  Penn.  St.  178.  As  to  estate  of 
mortgagee,  see  Wilson  ik  European  & 
North  American  Railway  Co.,  67  Me. 
358;  North  Hudson  Railroad  Co.  v. 
Booraera,  28  N.  J.  Eq.,  593;  Michi- 
gan Air  Line  Railway  Co.  v.  Barnes, 
40  Mich.  383;  Wooster  r.  Sugar  River 
Valley  Railroad  Co.,  57  Wis.  311. 
As  to  estate  of  remainderman,  see 
Lauterman  v.  Blairstown  Railroad 
Co.,  28  N.J.  Eq.  1.  As  to  estate  of 
tenant  in  common,  parties,  proceed- 
ings, apportionment,  appeal,  &c.,  see 
Grand  Rapids  Railroad  Co.  v.  Alley, 
31  Mich.  16;  Ruppert  v.  Chicago, 
Omaha,  &  St.  Joseph  Railroad  Co., 
43  Iowa,  490;  Grayville  &  Mattoon 
Railroad  Co.  v.  Christy,  92  111.  337; 
[*346] 


IMorin  v.  St.  Paul,  Minneapolis,  & 
]\Ianitoba  Railway  Co.,  30  Minn.  100; 
Bowman  v.  Venice  &  Carondelet 
Railway  Co.,  102  111.  4.59;  Watson  v. 
Milwaukee  &  Madison  Railway  Co., 
57  Wis.  332.  Who  is  to  be  deemed 
an  owner.  State  v.  Easton  &  Aniboy 
Railroad  Co.,  36  N.  J.  Law,  181; 
Gerrard  v.  Omaha,  Niobrara,  &  Black 
Hills  Railroad  Co.,  14  Neb.  270;  St. 
Louis,  Lawrence,  &  Denver  Railroad 
Co.  V.  Wilder,  17  Kan.  239.  Proof 
and  disproof  of  ownership.  St.  Louis 
&  Southeastern  Railway  Co.  v.  Teters, 
68  111.  144;  Knauft  v.  St.  Paul,  Still- 
water, &  Taylor's  Falls  Railroad  Co., 
22  Minn.  173;  Brisbine  v.  St.  Paul  & 
Sioux  City  Railroad  Co.,  23  j\Iinn. 
114;  Republican  Valley  Railroad  Co. 
V.  Hayes,  13  Neb.  489;  Dietrichs  r. 
Lincoln  &  Northwestern  Railroad  Co., 
14  Neb.  355.  Possession  as  proof  of 
ownership.  Sherwood  v.  St.  Paul  & 
Chicago  Railway  Co.,  21  Minn.  127; 
Ro.^a  V.  Missouri,  Kansas,  &  Texas 
Railway  Co.,  18  Kan.  124.  As  to 
partition  of  award  among  owners, 
Spaulding  v.  INIilwaukee,  Lake  Shore, 
&  Western  Railway  Co.,  57  Wis.  304. 


§  83.]  DIFFERENT   ESTATES   PROTECTED.  3G3 

give  up  premises  to  the  company,  upon  six  months'  notice  to  quit, 
without  reference  to  the  time  when  their  term  hegan,  but  aHowed 
tlicni  compensation,  if  required  to  leave  before  their  term  expired, 
it  was  lield,  that  when  the  six  months'  notice  required  tlic  tenant 
to  leave  at  the  end  of  liis  term,  he  was  not  entitled  to  comjK-nsa- 
tiou."  l>ut  wliere  a  tenant  gives  up  premises  under  a  six  months* 
notice  from  a  railway  comj)any,  when  he  is  entitled  to  c(mi[)ensa- 
tion,  without  demanding  it  of  the  company,  he  is  still  bound  to 
pay  full  rent  to  his  landlord.'^ 

3.  Church  pro[)erty  in  England  is  estimated  with  reference  to 
the  cost  of  a  new  site  and  similar  erections,  to  be  fixed  by  agree- 
ment between  the  company  and  the  diocesan  and  archbishop  of 
the  province.  But  after  this  appropriation  of  the  site  of  a  church 
to  secular  purposes,  the  rector  is  entitled  to  have  his  interest  in 
the  premises  connected  therewith  estimated  at  its  value  for  secu- 
lar uses.^ 

4.  Where  the  charter  of  a  company  imposed  a  penalty  upon 
them  for  any  obstruction  or  interruption  of  a  road,  and  in  the 
case  of  a  private  road  gave  the  right  to  recover  the  penalty  to  the 
owner  of  the  road,  it  was  held,  that  the  tenant  of  the  farm  over 
which  the  road  passed  could  not  sue  for  the  penalty.^ 

*  5.  Where  land  of  a  deceased  person  is  taken  for  a  railway, 
the  heir  and  not  the  administrator  is  entitled  to  the  damages  for 
such  taking,  and  to  prosecute  for  the  recovery  thereof,  although 
the  administrator  had  previously  represented  the  estate  insolvent, 
and  afterwards  obtained  a  license  to  sell  the  real  estate  for  tho 
payment  of  debts.^" 

0.  And  a  tenant,  whose  lease  began  before,  and  who  was  in 
possession  at  the  time  an  injury  was  done,  is  entitled  to  recover 
damages  for  an  injury  sustained  by  him  in  building  a  turnpiko 
road. 11  But  the  lessor  and  lessee  are  each  entitled  to  recover 
compensation  for  the  damage  sustained  by  them  respectively. '^ 

"  Queen  v.  London  &  Southampton  Railway  Co.,  10  A.  &  E.  3;  3.  c.  1 
Raihv.  Cas.  717. 

■'  Wainwright  v.  Ramsdem,  5  M.  &  W.  602;  s.  c.  1  Railw.  Cas.  714. 
8  Ililcoat  V.  Archbishops  of  Canterbury  &  York,  10  C.  li.  327. 
®  CoUinsou  ('.  Newcastle  &  Darlinc^ton  Railway  Co.,  1  Car.  &  K.  540. 
1'  Roynton  v.  Peterboro  &  Shirley  Railroad  Co.,  4  Cush.  407. 
"  Turnpike  Road  o.  Brosi,  22  IVnn.  St.  29. 

>2  Parks  y.  Boston,  15  Pick.  198.  See  also  Burbridge  v.  New  Albany  & 
Salera  Railroad  Co.,  9  Ind.  546. 

[•347] 


364  EMINENT   DOMAIN.  [PART   III. 

7.  And  where  the  plaintiff  had  no  access  to  his  land  except 
over  the  land  of  his  grantor,  it  was  held,  that  he  had  a  way  by 
necessity  across  such  land,  and  that  he  was  entitled  to  maintain 
an  action  against  a  railway  company  for  obstructing  it.^^ 

8.  So  also  where  the  free  flow  of  water  from  a  saw-mill  is 
obstructed  by  the  erection  of  a  railway  bridge  below  the  mill,  the 
company  arc  liable  to  the  owner  of  the  mill  in  an  action  of  tort. 
But  they  are  not  liable  for  any  increased  expense  thereby  oc- 
casioned to  the  mill-owner,  in  getting  logs  up  the  stream  to  his 
mill,  whether  the  stream  be  navigable  for  boats  and  rafts  or 
not.14 

9.  Where  the  statute  gives  remedy  against  all  persons  inter- 
ested, the  occupant  of  land  is  liable  to  be  affected  by  the  proceed- 
ings, and  a  similar  construction  will  prevail  where  the  remedy  is 
given  to  all  interested. ^^  It  seems  indispensable  to  the  asserting 
of  any  valid  claim  for  land  damages  that  the  claimant  prove  the 
character  and  extent  of  his  title. ^^  And  it  is  here  said  that  pos- 
session alone  will  not  be  *  regarded  as  ground  of  presumption  of 
title  in  fee.  And  where  the  entire  fee  in  the  land  is  condemned 
to  the  use  of  the  railway,  and  the  money  paid  into  court,  it  must 
be  apportioned  to  the  several  owners  of  different  interests  in  the 
land,  as  nearly  as  possible,  as  if  it  were  the  land  itself.  And  the 
same  result  will  follow  where  a  permanent  right  of  way  is  given 
in  any  form  to  a  perpetual  'corporation.^'^ 


"  Kitnball  o.  Cocheco  Railroad  Co.,  7  Fost.  N.  H.  448. 

"  Blood  V.  Nashua  &  Lowell  Railroad  Co.,  2  Gray,  137. 

^5  Gilbert  v.  Ilavermeyer,  2  Sandf.  .506.  The  term  "owner"  in  a  statute 
requiring  compensation  for  land  taken  includes  every  person  having  any  title 
to  or  interest  in  the  land,  capable  of  being  injured  by  the  construction  of  the 
road,  and  extends  to  the  interest  of  a  lessee  or  termor.  Baltimore  &  Ohio 
Railroad  Co.  c.  Thompson,  10  Md.  76;  Lewis  r.  Railrpad  Co.,  11  Rich.  91; 
Sacramento  Railroad  Co.  v.  Moflfatt,  7  Cal.  577. 

^8  Robbins  v.  Milwaukee  &  Horicon  Railroad  Co.,  6  Wis.  630. 

"  Ross  V.  Adams,  4  Dtitcher,  160;  Hagar  r.  Brainerd,  44  Vt.  294.  In  such 
case  the  party  having  an  unexpired  lease  will  be  entitled  to  so  much  only  of 
the  interest  of  the  fund  in  court  as  w'ill  indemnify  him  for  his  loss  of  rent, 
and  the  rest  of  the  income  must  accumulate  till  the  expiration  of  the  lease. 
Wootton's  Estate,  Law  Rep.  1  Eq.  589.  And  all  costs  of  parties  summoned 
by  the  railway  in  order  to  get  a  perfect  title,  must  be  paid  by  the  company. 
Haynes  v.  Barton,  Law  Rep.  1  Eq.  422.  And  the  costs  of  paying  money  out 
of  court  for  the  benefit  of  a  charity  must  also  be  borne  by  the  company. 
[*348J 


§  84.]  ARBITRATION.  865 

10.  And  where  a  tenant,  who  licld  the  land  for  a  term  of  years, 
with  a  strict  clause  against  alienation  or  subletting,  assigned  a 
small  portion  to  a  railway,  for  a  temporary  purpose,  the  coni[)any 
not  dealing  with  the  landlord,  or  giving  him  any  com[)ensation 
for  the  use  of  the  land,  it  was  held,  that  he  was  entitled  to  main- 
tain ejectment  against  the  company  and  his  tenant,  for  the  for- 
feiture incurred  by  this  subletting.!^ 

11.  And  the  damages  assessed  are  payable  to  the  owner  of  the 
land  at  the  date  of  the  adjudication,  and  do  not  pass  by  deed  to 
a  subsccjuent  purchaser.!^  And  where  the  company  gave  notice  to 
treat  for  land  to  a  tenant  at  will,  and  were  allowed  to  take  pos- 
session and  complete  their  line,  a  person  who  had  subsequently 
purchased  an  undivided  portion  of  the  land  was  not  allowed  to 

maintain  a  bill  to   restrain   the   company  from  the  use  of  tho 
land.^o 


♦SECTION   XXII. 

Arbitration. 

1.  Attorney,  without  express  power,  may  I  2.  Award  binding,  unless  objected  to  in 
refer  disputed  claim.  |  court. 

§  84,  1.  It  was  held  that  an  attorney,  who  had  no  authority 
under  seal   either   to  defend  or  refer  suits,  might   nevertheless 

Latluopp's  Cliarity,  Law  Rep.  1  Eq.  4G7.  A  person  not  summoned,  although 
having  knowledge  of  proceedings  to  condemn  land,  is  not  bound  thereliy;  but 
may  have  an  action  to  protect  his  interest.  Martin  v.  London,  Cliatham,  & 
Dover  Railway  Co.,  Law  Rep.  1  Eq.  145;  8.  c.  Law  Rep.  1  Ch.  Ap.  501.  See 
also  In  re  London,  Brighton,  &  South  Coast  Railway  Co.,  as  to  costs  of  parties 
summoned.     Law  Rep.  1  Ch.  Ap.  590. 

'«  Legg  V.  Belfast  &  Ballymena  Railway  Co.,  1  Ir.  Com.  Law,  l'2i,  n. 

"  Lewis  V.  "Wilmington  &  Manchester  Railroad  Co.,  11  Rich.  91.  But 
where  a  third  person  agreed  to  pay  the  land-owner  interest  on  tho  agreed 
compensation  for  his  land  damages  "  if  said  railway  shall  be  kept  in  opera- 
tion," his  object  being  to  secure  the  beneficial  operation  of  the  railway  by 
running  passenger  and  freight  trains,  it  was  held  he  was  not  bound  to  per- 
form on  his  part,  merely  because  the  railway  occasionally  ran  a  freight  train. 
Jepherson  i-.  Hunt,  2  Allen,  417. 

^  Carnochan  v.  Norwich  &  Spalding  Railway  Co.,  2G  Beav.  IGO. 

[♦349] 


366 


EMINENT   DOMAIN. 


[part  III. 


make  a  valid  reference  of  a  disputed  claim  against  the  company, 
under  a  judge's  order.^ 

2.  And  if  the  company  object  that  the  arbitrator  awarded  upon 
matters  not  submitted,  they  sliould  have  applied  to  the  court  to 
revoke  the  submission  or  set  aside  the  award,  upon  its  return  into 
court ;  but  not  having  done  so,  the  claim  being  set  up  and  enter- 
tained by  the  arbitrator,  the  award  is  binding.^  (a)  The  same 
principles  would  probably  obtain  in  the  American  courts. 


SECTION    XXIII. 


Statute  of  Limitations. 


1.  General  limitation  of  actions  applies  to 

land  claim. 

2.  Filing  petition  will  not  save  bar. 


3.  Acquiescence  of  forty  years  by  land- 

owner, effect  of. 

4.  Bar  effectual  where  the  use  is  clearly 

adverse. 


§  85.  1.  Where  neither  the  general  statutes  nor  the  special  act 
contain  any  specific  limitation,  in-  regard  to  claims  upon  railway 
companies  for  land  damages,  it  has  been  held  that  the  general 
statute  of  limitation  of  actions  for  claims  of  a  similar  character  will 
apply,  (a)  And  where  the  claim  was  for  an  injury  to  an  island, 
caused  by  the  erection  of  a  railway  bridge,  and  to  the  award  of  the 

^  Faviell  v.  Eastern  Counties  Railway  Co.,  2  Exch.  344.  In  England  it 
is  generally  held  that  an  attorney  should  be  appointed  under  seal  to  prosecute 
and  defend  suits,  on  the  part  of  corporations.  Thames  Haven  Dock  &  Rail- 
way Co.  V.  Hall,  5  Man.  &  G.  274;  Arnold  v.  Poole,  4  Man.  &  G.  860.  But 
where  the  directors  are  empowered  to  appoint  and  displace  any  of  the  officers 
of  the  company,  the  appointment  of  an  attorney,  by  the  company,  need  not  be 
under  seal.     See  infra,  §  141. 

(a)  As  to  the  time  within  which  the  (a)  Simms  v.  Memphis,  Clarksville, 

arbitrators    must  make  their   award,  &c.  Railroad  Co.,  12  Heisk.  621.    And 

under  statute  8  Vict.  c.  18,  see  Skerratt  statutes  of  limitation  are  valid  in  such 

V.  North  Staffordshire  Railroad  Co.,  2  cases.      lb.     Thus   it   has  been   held 

Phil.    475.      As   to    injunction    upon  that    the    right    to    compensation   is 

proceedings   pending  the   making  of  barred  in  twenty  years.    Ross  w.  Grand 

an  administration   bond  pursuant  to  Trunk  Railway  Co.,   10  Out.  Q.  B. 

the  same  statute,  see  Poynder  v.  Great  447. 
Northern  Railroad  Co.,  2  Phil.  330. 

[*349] 


§  85.]  STATUTE   OF   LIMITATIONS.  867 

•  viewers,  and  the  company  j)lcad  actio  non  infra  sex  annos,  the 
plea  was  held  <^ood.^ 

2.  And  where  tlic  statute  provides,  that  no  process  to  recover 
comjKMisatiuu  for  Lmd  or  property  taken  by  a  railway  shall  "  be 
sustained  unless  made  within  three  years  from  the  time  of  taking 
the  same,"  a  mere  liling  of  an  application  with  the  clerk  of  the 
county  commissioners,  without  bringing  it  to  the  notice  of  the 
coniniissioners,  or  any  action  of  theirs  thereon  until  the  three 
years  have  elapsed,  will  not  save  the  bar  of  the  statute.^  (i)  The 
land-owner  may  also  traverse  the  right  of  the  company  to  take  the 
land,  either  originally,  for  the  location  and  construction  of  their 
road,  on  the  ground  that  it  does  not  come  within  their  line  or  the 
line  of  deviation  from  the  prescribed  route,  or  that  they  have  not 
taken  the  proper  preliminary  steps,  or  for  any  other  cause ;  or, 
when  the  coni[)any  propose  to  change  their  route  or  to  enlarge  their 
accommodation  works,  on  the  ground  of  having  made  their  exclu- 
sive election  in  one  case,  or  the  want  of  necessity  in  the  other."* 

3.  Where  the  land-owner  had  allowed  the  company,  ujjon  an 
appraisal  in  the  alternative  stating  both  the  value  of  the  land  and 
of  the  ainiual  use,  to  occupy  the  same  for  the  purposes  of  a  canal 
for  more  than  forty  years,  paying  an  annual  sum  about  the  same 
which  had  been  awarded,  the  award  being  defective  in  law,  in 
that  no  person  had  been  made  a  party  to  the  proceeding  who 
was  authorized  to  represent  the  land-owner,  who  was  an  infant,  it 
was  held  that  this  was  no  ground  of  presuming  a  contract  on  the 
part  of  the  land-owner  to  convey  the  land  in  fee  in  consideration 
of  a  rent  charge.*  But  it  was  held  that  an  ejectment  on  the  part 
of  the  land-owner,  and  the  erection  of  a  bridge  by  him,  ought  to  be 
restrained  by  injunction,  on  the  ground  of  acquiescence,  the  com- 
pany undertaking  to  put  in  force  their  parliamentary  powers, 
which  had  not  expired,  and  thus  obtain  the  land. 

'  Forster  v.  Cumberland  Valley  Railroad  Co.,  23  Peun.  St.  371. 
-  Charles  River  Railroad  Co.  v.  Norfolk  County  Commissioners,  7  Gray,  389. 
«  South  Carolina  Railroad  Co.  v.  Blake,  9  Rich.  228;  supra,  §72;  iu/ra, 
§  105,  note  14. 

*  Somerset  Canal  Co.  v.  Harcourt,  2  De  G.  &  J.  59G. 

(/')  Nor  will  proceedings  suspended  Cheraw  &  Darlington   Railroad  Co., 

without  assessment  made  and  with-  IG  S.  C.  41G.     As  to  tiie  effect  of  a 

out    due     continuances,    the    statute  saving  of  the  rights  of /e/ncs  coierf  and 

period  having  elapsed.      Waring  t>.  infants.     lb. 

[*350] 


368  EMINENT   DOMAIN.  [PART   III. 

4.  But  in  another  case,  where  the  party  had,  by  contract  with 
the  original  land-owner,  used  the  land  of  others  for  more  than  fifty 
years,  first  for  a  tramway  and  subsequently  for  a  railway  in  a 
*  different  place  across  the  same  land,  it  was  held  that  the  present 
land-owner  was  concluded  by  the  agreement,  and  that  the  change 
of  one  place  for  another  would  not  defeat  the  estoppel.  All  the 
party  can  claim  is,  to  have  damages  under  the  statute.^ 

6  Mold  I'.  Wheatcroft,  29  Law  J.  Ch.  11 ;  s.  c.  27  Beav.  510. 
[*351J 


§80.] 


COMPANY    150UNU    TO    I'UUCIIA.SK    WHOLE    OF    IIOL'SE. 


3G9 


♦CHAPTER    XII. 

REMEDIES    BY    LAND-OWNERS    UNDER   THE    ENGLISH    STATUTE. 
SECTION    I. 

Company  hound  to  purchase  the  ivhole  of  a  House,  etc. 


1.  Company  to  take  tlic  accessories  with 

the  house. 

2.  But  tlie  owner  lias  an  election  as  to 

whether  company  shall    take    the 
whole. 

3.  Company  bound   to  make  deposit  of 

the  appraised  value  of  all  it  is  bound 
to  take. 


4.  Company  bound  to  take  all  of  which  it 

takes  part,  and  pay  special  damage 
besides. 

5.  Company  having  given  notice  of  desire 

to   take   part,   not   bound   to    take 
wiiole  if  it  waives  its  intention. 
G.  Land  separated  from  house  by  higli- 
way  not  part  of  premises. 


§  8G.  1.  By  the  English  statute^  (r/)  railway  companies  arc  bound 
to  purchase  the  whole  of  a  house  and  lands  adjoining,  if  required, 
when  they  give  notice  to  take  part ;  and  also  if  the  house  or  the 
principal  portion  of  it  be  within  fifty  feet  of  the  railway,  and  deteri- 
orated by  it.  The  act  includes  house,  garden,  yard,  warehouse, 
building  or  manufactory;  but  it  was  considered  that  tliis  did  not 
extend  to  a  lumber-yard.^  (?')    Under  a  similar   provision,  in  a 

1  Statute  8  &  9  Vict.  c.  18,  §  92. 

2  Stone  1'.  Commercial  Railway  Co.,  9  Sim.  G21;  s.  c.  1  Raihv.  Cas.  37'); 
Regina  i;.  Middlesex,  3  Raihv.  Cas.  39G.  But  it  will  include  an  open  space  in 
front  of  a  public  liouse  used  by  guests  for  the  purpose  of  access  to  the  house 
with  vehicles,  the  land  liavitij^  passed  with  the  lease  of  the  house  for  many 
years.  Marsoii  v.  London,  Cliatham,  &  Dover  Railway  Co.,  Law  Rep.  G  Eq. 
lOL 


(«)  This  statute  is  to  be  construed  must  take  all  of  the  land.     Salter  i*. 

strongly     against     the     corporation.  ^Metropolitan   District   Railway    Co., 

Walker  v.  London  &  Blackwall  Rail-  Law  Rep.  9  Eq.  432.      As  to  taking 

way  Co.,  3  Q.  B.  744.  part  of  a  block  and  so  impairing  means 

{l>)  To  take  greenhouses   situated  of  access  to  the  rest,  .see  Ford  r.  Met- 

with  a  dwelling-house  in  an  inclosure  ropolifan  Railway  Co.,  Law  Rep.  17 

of  about  two  acres,  all  used  together  Q.  B.  12. 
as    a    nursery   garden,    the   company 

VOL.  I.  -24                                   ^  [♦3o2] 


370     REMEDIES  BY  LAxND-OWNERS  UNDER  ENGLISH  STATUTE.    [PAUT  TH. 

special  charter,  it  was  held,  that  the  company  were  not  bound  to 
take  the  entire  ])remiscs,  wlicre  the  principal  dwelling-house  only 
was  within  the  prescribed  liniit.^ 

2.  It  has  been  considered  that  this  statute  gave  an  option  to  the 
land-owner,  whether  the  company  should  take  the  whole  or  part 
of  the  house,  so  situated.*  And  in  this  last  case  it  was  held, 
*  that  a  narrow  strip  of  land  adjoining  an  iron  and  tin-plate  fac- 
tory, wliich  had  been  used  as  a  place  of  deposit  for  rubbish,  and 
over  which  a  person  had  a  right  of  way,  was  such  a  part  of  the 
manufactory,  that  the  company  were  bound  to  take  the  whole.*  (c) 

3.  And  the  statute  requiring  a  deposit  of  the  appraised  value 
of  the  land  taken  by  a  railway  company,  before  entering  upon  the 
same,  imports  the  value  of  the  whole  premises,  in  all  cases  where 
the  company  give  notice  of  requiring  part,  and  the  owner  elects, 
according  to  the  terms  of  the  statute,  that  they  shall  take  the 
whole.^ 

4.  Where  three  adjoining  houses  had  gardens  laid  out  from  the 
*plat  of  land  upon  which  they  were  built  for  the  accommodation 
of  each,  and  a  railway  company  proposed  to  take  a  strip  of  land 
from  the  gardens  attached  to  two  of  the  houses  upon  the  side 

8  Regina  v.  London  &  Greenwich  Railway  Co.,  3  Railw.  Cas.  138. 

*  Sparrow  v.  Oxford,  Worcester,  &  W'olverliamptoii  Railway  Co.,  2  De  G. 
M.  &  G.  94;  s.  c.  13  Eiig.  L.  &  Eq.  33,  per  Lord  Cranwouth  and  Sir  Kxh-ht 
Bruce,  L.  J.  See  also  Barker  v.  North  Staffordshire  Railway  Co.,  2  De  G. 
&  S.  bo\  s.  0.  5  Railw.  Cas.  401,  419,  where  Lord  Cottknham,  Chancellor, 
intimates  an  opinion,  that  certain  parcels  of  land,  with  a  brine-pit  and  steam- 
engine  on  one  of  them,  adjoining  salt-works,  are  not  a  part  of  the  manufactory. 

In  Sparrow  v.  Oxford  Railway  Co.,  2  De  G.  .Al.  &  G.  91;  s.  c.  13  Eng.  L. 
&  Ecj.  33,  involving  the  question  of  the  right  of  a  company  to  tunnel  under  a 
manufactory  without  making  compensation,  Lord  Craxwouth,  L.  J.,  made 
some  very  significant  suggestions  in  regard  to  the  rights  of  land-owners  in  such 
cases.  In  Ramsden  v.  Manchester,  South  Junction,  &  Altringham  Railway  Co., 
1  Exch.  723,  it  was  determined  that  a  railway  company  could  not  tunnel  even 
a  highway,  without  first  making  compensation  to  the  owner  of  the  freehold, 
under  the  Land  Clauses  Act.  The  company  is  not  bound  to  take  property 
more  than  fifty  feet  from  the  centre  line  of  the  road,  unless  it  is  incapable  of 
separation.     Queen  v.  London  &  Greenwich  Railway  Co.,  3  Q.  B.  106. 

^  Underwood  v.  Bedford  &  Cambridge  Railway  Co.,  11  C.  B.  n.  s.  442; 
s.  c.  7  Jur.  N.  s.  941.  So  an  offer  of  compensation  to  the  party  must  be  dis- 
tinct from  costs.     Balls  v.  Metropolitan  Board,  Law  Rep.  1  Q.  B.  337. 

(c)  So  of  a  row  of  cottages  standing  Richards  r.  Swansea  Tramways  Co  , 
on  premises  used  as  a  manufactory.     Law  Rep.  9  Ch.  425. 

[*353,  *354] 


§  SG.]       CUMI'ANY    HOUND    TO    PL'UCIIASK    WHOLL    OF    HOUSE.  371 

most  rcmoto  from  the  houses,  and  the  owner  elected  to  have  the 
company  take  the  houses,  whieh  they  decHned  to  do,  hut  took 
the  laud ;  the  company  were  held  liahle  to  purchase  the  whole 
of  the  two  houses,  the  gardens  hcing  part  of  the  houses  to  which 
they  were  attached,  and  also  to  make  compensation  for  any  injury 
sustained  in  respect  of  the  other  house.^  (<Z) 

5.  It  has  also  heen  determined,  that  the  railway,  after  giving 
notice  to  purchase  part  of  a  house,  <fcc.,  and  being  required  by  the 
owner  to  take  the  whole,  cannot  be  compelled  by  mandamus  to 
take  the  whole,  as  the  act  of  parliament  imposes  no  such  obliga- 
tion. The  statute  is  intended  to  |)rotoct  the  owner  from  being 
compelled  to  sell  a  part,  but  docs  not  comjtel  a  company,  wanting, 
a  part  only,  to  take  the  whole,  if  they  chose  to  waive  their  claim 
altogether,  and  the  mandamus  having  claimed  the  whole  could 
not  go  for  a  part  only.' 

«  Cole  V.  Crystal  Palace  Rdlway  Co.,  5  Jur.  N.  s.  1114;  s.  c.  27  Beav.  212. 
The  terra  "house"  in  the  statute  includes  all  that  would  pass  by  the  same 
word  in  an  ordinary  conveyance.  Hewson  v.  London  &  Southwestern  llailway 
Co.,  8  AV.  R.  4G7;  Ferguson  v.  Brighton  &  South  Coast  Railway  Co.,  9  Law 
T.  N.  8.  134;  s.  c  30  Beav.  100.  It  will  therefore  embrace  all  of  a  series  of 
gardens  connected  by  a  gravel  walk  passing  through  the  walls  of  the  different 
gardens,  lb.  See  King  v.  Wycombe  Railway  Co.,  (J  Jur.  x.  s.  2:)9;  s.  c.  28 
Beav.  101.  A  hospital  may  compel  a  railway  company  to  take  the  whole  of 
the  hospital  if  it  take  one  wing  used  for  the  same  purposes  as  the  rest  of  the 
building,  although  connected  only  by  a  wall.  St.  Thomas  Hospital  v.  Charing- 
Cross  llailway  Co.,  1  Johns.  &  II.  400;  s.  c.  7  Jur.  n.  s.  25G.  Houses  in 
the  course  of  construction  come  within  the  statute.  Alexander  r.  Crystal 
Palace  Railway  Co.,  8  Jur.  n.  s.  833;.  s.  c.  3()  Beav.  550.  See  also  Chambers 
V.  London,  Chatham,  &  Dover  Railway  Co.,  8  Law  T.  N.  .s.  235.  Land  used 
for  purposes  of  pastime,  as  archery  and  dancing,  but  chiefly  as  a  pasture  for 
cows,  although  important  to  the  enjoyment  of  the  house,  is  not  so  a  part  of  the 
same  premises  as  to  require  the  company  to  take  it  with  the  house  or  the  house 
with  that.  Pulling  r.  London,  Chatham,  &  IHiver  Railway  Co.,  10  Jur.  n.  s. 
605;  s.  c.  33  Beav^  014. 

'  Queen  v.  London  &  Southwestern  Railway  Co.,  12  Q.  B.  775;  s.  c.  5 
Railw.  Cas.  6G9. 

('0  Whore  in  the  execution  of  a  houses  takes  a  part  of  a  house  within 

charity  trustees  had  projected  a  row  the  meaning  of  the  statute,  although 

of  almshouses,    with   a    hall    in    the  nothing  more  than  the  hall  has  been 

centre  and  a  garden  in  front,  a  com-  built.    Grosvenor  r.  Hampstead  .lunc- 

pauy  taking  land  which  would  be  in  tion  Railway  Co.,  1  De  G.  &  J.  440. 
front  of  a  part  of  some  of  the  alms- 


372     EEMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    [PART  III. 

6.  The  plaintiff  was  an  owner  in  fee  of  a  house  on  one  side  of 
*a  high  road,  where  he  had  resided  for  a  great  nuraher  of  years. 
Some  years  ago  he  purchased  six  acres  of  land  on  the  other  side 
of  the  road,  upon  part  of  which  there  were  built  three  houses. 
Two  of  the  houses  were  let  to  tenants,  the  third  house  was  occu- 
pied by  the  plaintiff's  groom,  and  other  servants  ;  the  rest  of  the 
land,  which  lay  beyond  the  houses,  was  used  by  the  plaintiff  for 
pasturing  his  cows,  horses,  &c.  The  plaintiff  alleged  that  the  six 
acres  were  indispensable  to  the  enjoyment  of  the  house  by  him. 
A  railway  wanting  part  of  the  six  acres,  which  lay  about  250  yards 
from  the  plaintiff's  house,  the  plaintiff  sought  to  compel  the  com- 
pany to  take  the  house  also,  on  the  ground  that  tlie  land  formed 
part  of  his  house,  within  the  92d  section  of  the  Act.  But  the 
motion  for  injunction  having  been  denied  by  the  Vice-Chancellor, 
Wood,  his  judgment  was  affirmed  in  the  Court  of  Chancery  Appeal, 
Lord  Justice  Knight  Bruce  dubitante  ^ 


SECTION  II. 
Company  compellable  to  take  intersected  Lands,  and  Owner  to  sell. 

1.  When  less  than  half  an  acre  remains  I  2.  Owner  must  sell  where  land   of   less 
on  either  side,  company  must  buy.  value  than  railroad  crossing. 

1  3,  4.  Word  "  town,"  how  construed. 

§  87.  1.  By  the  93d  section  of  the  English  statute  tlie  com- 
pany is  compellable  to  take  lands,  not  in  a  town  or  built  upon, 
which  are  so  intersected  by  the  works  as  to  leave  either  on  one 
or  both  sides  a  less  quantity  of  land  than  half  a  statute  acre. 

2.  And  by  section  94,  if  the  quantity  of  land  left  on  either  side 
of  the  works  ^  is  of  less  value  than  a  railway  crossing,  and  the 

8  Steele  v.  Midland  Railway  Co.,  Law  Rep.  1  Ch.  275;  s.  c.  12  Jur.  x.  s. 
218. 

1  Statute  8  &  9  Vict.  c.  18,  §§  93,  94;  Falls  v.  Belfast  &  Ballymena  Railway 
Co.,  11  Ir.  Law,  184.  This  statute  has  been  held  not  to  apply  to  lands  iu  a  town 
or  land  built  upon.  Marriage  v.  Eastern  Counties  Railwaj'  Co.,  30  Law  T. 
264;  s.  c.  9  H.  L.  Cas.  32,  where  the  judgment  of  the  Exchequer  Chamber, 
2  H.  &  X.  649,  is  reversed,  and  the  statute  held  to  apply  to  all  intersected 
lands,  whether  in  a  town  or  not.  A  land-owner  is  not  entitled  to  the  costs  of 
[*355] 


§  88.] 


NOTICK   TO    TREAT   FOR   PURCHASE   OF   LAND. 


373 


•owner  have  not  other  hinds  adjuinin<r,  and  UHjuire  the  promoters 
to  make  the  crossing,  the  owner  may  be  couipelled  to  sell  the 
land. 

3.  It  was  hold,  that  the  term  "  town,"  in  a  turnpike  act,  im- 
ported a  "  collection  of  houses,"  and  that  the  extent  of  the  town 
was  to  be  determined  by  the  popular  sense  of  the  term,  and  to 
include  all  that  might  fairly  be  said  to  dsvell  together.^ 

4.  And  in  another  case,  it  is  said,  that  the  term  includes  all 
the  houses  which  are  continuous,  and  that  tliis  includes  all  0])en 
spaces  occupied,  as  mere  accessories  to  such  houses.^ 


SECTION    III. 


Effect  of  Notice  to  Treat  for  the  purchase  of  Land. 


1.  Institution     of    proceedings.      Effect 

under  statute  of  limitations. 

2.  Company  compelled  to  summon  jur}'. 

3.  Ejeciment   not   maintainable   against 

company. 
•i.  Towers   to    purchase   or   enter,    liow 
saved. 


5.  Subsequent  purchasers  affected  by 
notice  to  treat  as  the  inception  of 
title. 

G.  But  notice  may  be  withdrawn  before 
anything  is  done  under  it. 

7.  Not  necessary  to  declare  the  use,  nor 
that  it  is  for  station  in  use  of  which 
another  company  is  to  participate. 


§  88.  1.  Inasmuch  as  the  time  for  taking  land,  by  the  English 
statute,  is  limited  to  three  years,  an  important  (picstion  has 
arisen  there,  in  regard  to  the  effect  of  instituting  proceedings 
by  giving  notice  to  treat,  within  the  time  limited,  although  not 
in  season  to  have  the  matter  brought  to  a  close  before  its  e.\- 
jjiration. 

2.  This  having  been  done,  and  the  land-owner  having  intimated 
his  desire  that  a  jury  should  be  summoned,  but  the  comjiany 
taking  no  further  steps,  the  question  was  whether  a  writ  of 
mandamus  would  lie,  after  the  prescribed  period  had  elapsed,  to 

an  iiKniiry  wliother  tlio  land  is  of  less  vahie  than  tlio  cost  of  crossing.     Cobb 
V.  M\d  Wales  Railway  Co.,  Law  Rep.  1  Q.  B.  312. 

-  Retina  v.  Cottle.  3  Eng.  L.  &  Eq.  474;  s.  c.  16  Q.  R.  41-2. 

3  Elliott  V.  South  Devon  Railway  Co.,  2  Exch.  725.  See  also  Carington  r. 
Wycombe  Railway  Co.,  Law  Rep.  2  Eq.  825. 

[*35G] 


37  i     REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    [PART  III. 

compel  the  company  to  proceed  to  summon  a  jury.  It  was  de- 
termined in  the  affirmative.^ 

*  3.  So,  too,  where  the  company  have  taken  possession  of  land, 
by  depositing  the  value  of  the  land  in  the  Bank  of  England,  and 
executing  a  bond  to  the  party  to  secure  payment,  subject  to  future 
proceedings,  as  they  may  do,  and  where  the  company  took  no 
further  steps  to  ascertain  the  sum  to  be  paid  by  them,  as  compen- 
sation, until  the  time  limited  for  exercising  their  compulsory 
powers  had  expired,  it  was  held,  that  having  rightfully  entered 
upon  the  land  before  the  expiration  of  the  prescribed  period,  aa 
ejectment  could  not  be  maintained  against  them  after  that  period. 
The  proper  remedy  for  the  land-owner  is  by  writ  of  mandamus.^ 

4.  So,  also,  if  they  have  made  the  deposit,  and  given  a  bond 
for  the  payment  of  the  price,  under  this  same  section,^  a  day  be- 
fore the  efflux  of  the  time  limited,  although  they  had  not  entered 

^  Queen  v.  Birmingham  &  Oxford  Junction  Railway  Co.,  15  Q.  B.  634 ;  s.  c 
6  Railw.  Cas.  628;  Birmingham  &  Oxford  Junction  Railway  Co.  v.  Regina,  1 
Ellis  &  B.  293;  s.  c.  4  Eng.  L.  &  Eq.  276,  where  the  judgment  of  the  Queen's 
Bench  was  fully  affirmed  in  the  Exchequer  Chamber.  But  where  an  annuitant, 
having  power  to  enter  upon  land  and  distrain  for  his  security,  was  served  with 
notice  by  a  railway  company  of  intention  to  purchase,  and  the  company  sub- 
sequently purchased  the  property  of  a  prior  mortgagee,  who  had  a  power  of 
sale,  it  was  held  that  in  the  absence  of  fraud,  the  annuitant  could  not  compel 
the  company  to  pay  the  owners  of  the  annuity.  Hill  v.  Great  Northern  Rfiil- 
■way  Co.,  5  De  G.  M.  &  G.  66;  s.  c.  27  Eng.  L.  &  Eq.  198,  reversing  the 
decision  of  one  of  the  Vice-Chancellors  in  s.  c  23  Eng.  L.  &  Eq.  56.i.  See 
also  Metropolitan  Railway  Co.  v.  Woodhouse,  11  Jur.  n.  s.  296.  If  the  land- 
owner lie  by  an  unreasonable  time,  he  cannot  maintain  mandamus,  or  where 
the  company  abandons  its  notice  to  take  part  of  land  upon  the  owners  serv- 
ing notice  to  take  the  whole.     Ex  parte  Quicke,  13  W.  R.  94. 

2  Armistead  v.  North  Staffordshire  Railway  Co.,  16  Q.  B.  526;  s.  c.  4  Eng. 
L.  &  Eq.  216.  The  expression  "deviation,"  which  appeal's  in  the  acts  of  parlia- 
ment and  in  the  English  cases,  is  here  determined  to  import  distance  from  the 
line  of  the  parliamentary  plans  which  are  the  basis  of  the  chai'ter,  and  one 
hundred  yards  -'deviation"  is  commonly  allowed,  in  the  acts.  Worsley  f . 
South  Devon  Railway  Co.,  16  Q.  B.  539;  s.  c  16  Q  B.  223.  See  also  Lind 
V.  Isle  of  Wight  Ferry  Co.,  7  Law  T.  n.  s.  416.  The  courts  will  restrain  the 
company  within  the  limits  of  deviation  allowed  by  the  act,  even  where  the 
plans  deposited  contain  no  limitation.  Higley  v.  Lancashire  &  Yorkshire  Rail- 
way Co.,  4  De  G.  M.  &  G.  352.  The  line  of  deviation  controls  the  right  rather 
than  the  delineations  on  the  plan.  Weld  v.  Southwestern  Railway  Co.,  32 
Beav.  340;  Knapp  r.  London,  Chatham,  &  Dover  Railway  Co.,  2  H.  &  C  212. 

8  Salisbury  v.  Great  Northern  Railway  Co.,  17  Q.  B.  840;  s.  c.  10  Eng.  L. 
&  Eq.  344.  The  position  is  here  distinctly  assumed,  that  after  the  notice  to 
[*357] 


§  88.J  NOTICE   TO    TUI:AT    for    I'L'UCIIASfc:    OF    LAM).  37o 

upon  *  the  laud,  their  powers  to  purchase  or  eutcr  upon  the  lauds 
are  saved. '^ 

5.  Aud  where  a  railway  compauy  gave  notice  to  a  teuaut  at 
will  to  take  part  of  the  lauds,  aud  the  couipauy  were  allowed  to 
take  possessiuu  aud  complete  their  line,  aud  afterwards  a  person, 
who  had,  subsequently  to  the  notice,  purchased  one-ninth  of  the 
laud,  filed  a  bill  merely  praying  an  injuuction  to  restrain  the 
railway  compauy  fi'om  entering  upon,  continuing  in  possessi<ju 
of,  or  otherwise  interfering  with  the  land,  the  bill  was  dismissed 
with  costs.* 

6.  But  it  seems  to  be  considered  that  mere  notice  Ijy  a  railway 
company  of  an  intention  to  take  land,  may  be  withdrawn  if  done 
before  the  company  have  taken  possession  of  the  land,  or  done 
anything  in  pursuance  of  the  notice.^  Aud  this  is  especially 
true  where  the  land  consists  of  a  house  and  appurtenauces,  and 
the  notice  only  extends  to  taking  a  part  of  the  land,  and  the 
owner  requires  the  company  to  take  the  whole  land  with  all  the 
buildiugs. 

7.  It  is  no  objection  to  a  notice  to  take  land  for  the  use  of  a 
railway  comjjuny  that  it  docs  not  declare  the  use  for  which  it  is 

treat,  the  parties  stand  in  tlie  relation  of  vendor  and  purcliaser,  and  the  com- 
pany is  not  at  liberty  to  recede.  All  the  after  proceedings  are  merely  for  the 
purpose  of  ascertaining  the  price  of  the  land.  Sparrow  r.  (Jxford  &  Worcester 
Railway  Co.,  9  Hare,  4:jG;  s.  c.  12  Eng.  L.  &  Eq.  249.  The  owner  of  the  land 
on  which  a  railway  has  been  constructed  by  the  consent  of  such  owner,  still 
retains  his  lien  on  the  land  for  the  price.  Tell  r.  N.  &  B.  Railway  Co.,  16  W. 
R.  1077;  s.  c.  17  W.  R.  500;  Eytou  v.  Denbigh,  Ruthin,  &  Corweu  Railway 
Co.,  17  W.  R.  510. 

*  Carnochan  v.  Norwich  &  Spalding  Railway  Co.,  20  Beav.  109.  But  a 
notice  to  treat,  in  order  to  become  the  inception  of  title,  must  he  followed  up 
within  a  rea,sonal)le  time,  or  it  will  be  regarded  as  abandoned.  Hedges  v. 
Metropolitan  Railway  Co.,  28  Beav.  109;  s.  c.  G  Jur.  n.  s.  1275. 

6  King  V.  Wycombe  Railway  Co.,  6  Jur.  n.  s.  239;  s.  c.  28  Beav.  104; 
r.ardner  r.  Charing-Cross  Railway  Co.,  2  Johns.  &  H.  248;  s.  c.  8  Jur.  n.  s. 
1")1.  Where  the  company  agrees  verbally  to  take  the  whole  of  a  house  and 
land,  that  is  a  valid  waiver  of  notice  under  the  statute,  and  will  be  enforced 
in  equity.  Binney  v.  Hammersmith  &  City  Railway  Co.,  9  ,Iur.  .n.  s.  77;J. 
A  tenant  coming  into  posse.ssion  of  land  after  notice  to  treat,  and  before  pro- 
ceedings taken,  is  entitled  to  renewal  of  notice,  so  as  to  be  made  a  i^rty. 
Carter  c.  Great  Eastern  Railway  Co.,  9  Jur.  x.  s.  GIS.  And  a  notice  to  take 
land  will  not  enable  the  company  to  proceed  and  complete  title  after  its  powers 
for  compulsory  purchase  have  ceased.  Riclimond  v.  North  London  Railway 
Co.,  Law  Rop.  5  Eq.  352.     But  see  inj'ra,  §  89,  pi.  2,  note  4. 

[•358] 


37G     EEMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    [PART  III. 

proposed  to  be  taken ;  nor  will  it  affect  the  title  of  the  company 
that  it  is  taken  for  a  station  for  the  joint  use  of  that  and  another 
company,  which  latter  company  could  not  have  taken  the  land  for 
their  own  use  alone.^ 


*SECTION    IV. 


Requisites  of  the  Notice  to  Treat. 


\.  Notice  to  treat  must,  in  terms  or  by  ref- 
erence, accurately  describe  land. 

2.  Company  cannot  retract  after  giving 

notice  to  treat. 

3.  New  notices  given  for  additional  lands. 


4.  Power  to  take  land  not  lost  by  former 

unwarranted  attempt. 

5.  Lands  may  be  taken  for  branch  rail- 

way. 

6.  Effect  of  notice  in  case  of  a  public  park. 


§  89.  1.  As  by  the  English  statute  the  notice  to  treat  is  made 
the  act  of  purchase,  it  is  of  the  first  importance  that  it  should 
describe  the  lands  accurately.  But  even  where  the  notice  was  in- 
definite, if  it  be  accompanied  with  a  plan  which  shows  the  very 
land  proposed  to  be  taken,  it  will  be  sufficient ;  or  reference  may 
be  made  to  the  parliamentary  plan.^  The  company  can  only  claim 
to  use  what  their  notice  and  the  annexed  plan  show  clearly  was 
submitted  to  the  appraisers  to  value.^ 

2,  It  was  held  long  ago  in  the  English  courts,  under  similar 
statutes  for  taking  land  by  compulsion,  that  the  notice  to  treat 
constituted  the  act  of  purchase,  and  that  after  giving  it  there 
remained  no  longer  to  the  company  any  power  to  retract,  and  they 
will  be  compelled  by  mandamus  to  complete  the  purchase.''  (a) 

^  Wood  V.  Epsom  &  Leatherhead  Railway  Co.,  8  C.  B.  n.  s.  731. 

^  Sims  u.  Commercial  Railway  Co.,  1  Railw.  Cas.  431;  Hodges  Railw.  197. 

^  Kemp  V.  London  &  Brighton  Railway  Co.,  1  Railw.  Cas.  495. 

3  King  V.  Ilungerford  Market  Co.,  4  B.  &  Ad.  3"27;  King  v.  Manchester 
Commissioners,  4  B.  &  Ad.  332,  n.;  Doo  v.  London  Railway  Co.,  1  Railw. 
Cas.  257;  Burkinshaw  v.  Birniingliam  &  Oxford  Junction  Railwaj^  Co., 
5  Exch.  475;  s.  c.  4  Eng.  L.  &  Eq.  489;  Edinburgh  &  Dundee  Railway  Co. 
i\  Leven,  1  Macq.  Ap.  Cas.  284;  Stone  v.  Commercial  Railway  Co.,  9  Sim. 
621 ;  s.  c.  1  Railw.  Cas.  375.  When  variance  from  notice  will  not  vitiate 
precept,  see  Walker  v.  London  &  Blackwall  Railway  Co.,  3  Q.  B.  744; 
Regina  v.  York  &  North  ^Midland  Railway  Co.,  1  Ellis  &  B.  178,  858;  Regina 


(a)  Harding  v.  Metropolitan  Railway  Co.,  Law  Rep.  7  Ch.  154. 

[*359] 


§  80.]  REQUISITES    or    THE    NOTICE   TO    TREAT.  877 

Nor  can  the  company  after  rc(iuii-ing  the  tenant  to  pivc  up  to 
them  the  possession  of  his  hind  before  the  expiration  of  his  term, 
afterwards  surrender  the  same,  especially  where  dama^^e  lias 
accrued  to  the  jjrcmises  in  consequence  of  the  cumi)any  taking 
possession.     They  must  pay  money  into  court.* 

*  3.  And  where  the  company  had  given  notice  to  take  twenty 
perches  of  land,  they  cannot  subsequently  give  notice  to  restrict 
the  land  to  one  perch .^  But  the  company  having  issued  one 
notice,  may  issue  a  second,  requiring  additional  lands.^  They 
are  at  liberty,  by  new  notices  from  time  to  time,  to  take  such 
additional  lands  as  the  progress  of  the  work  shows  will  be 
requisite. 

4.  Xor  will  the  company  be  deprived  of  the  power  to  take  land 
for  the  necessary  use  of  the  works,  when  the  emergency  arises,  by 
having  previously  attempted  to  take  it  for  other  purposes  not 
warranted  by  their  act." 

5.  And  the  company,  having  opened  their  main  line  for 
travel,  but  not  completed  the  stations  and  works,  are  at  liberty 

V.  Ambergate,  Nottingham,  &  Boston  Railway  Co.,  1  Ellis  &  B.  372.  See 
supra,  §  88,  pi.  G,  and  notes. 

*  Pope  V.  Great  Eastern  Railway  Co.,  Law  Rep.  3  Eq.  171.  Notice  to 
treat  is  not  equivalent  to  requiring  tlie  tenant  to  surrender  the  possession. 
Queen  v.  Stone,  Law  Rop.  1  Q.  B.  529.  But  where  the  land-owner  is  served 
by  the  company  with  notice  that  it  purposes  to  take  land  of  such  owner,  at 
the  end  of  six  months,  under  the  statute,  this  will  bind  the  company  to  pro- 
ceed and  give  notice  to  treat  and  take  the  land ;  and  if  the  company  delay 
beyond  the  time  fixed  by  the  statute,  the  land-owner  \Yill  be  entitled  to  sub- 
stantial damages,  and  to  have  the  contract  carried  into  effect  by  mandamus. 
Morgan  v.  ISIetropolitau  Railway  Co.,  Law  Rep.  4  C.  P.  97,  afTirming  s.  c.  Law 
Rep.  ;5  C.  P.  553;  17  W.  R.  2G1.  In  such  cases  the  courts  of  equity  will  decree 
specific  performance,  especially  where  the  defendants  had  been  let  into  posses- 
sion of  the  land  on  the  faith  of  the  contract.  Harding  v.  Metrojwlitan  Railway 
Co.,  Law  Rep.  7  Ch.  Ap.  151.  But  the  court  will  not  restrain  the  company  from 
running  trains  during  the  pend<Micy  of  an  order  of  sale  to  enforce  a  vendor's 
lieu.  Lycett  v.  Stafford  &  Uttoxeter  Railway  Co.,  Law  Rep.  13  Eq.  2(il ;  St. 
Oerinans  v.  Crystal  Palace  Railway  Co.,  Law  Rep.  11  Eq.  5GS,  waa  not  fol- 
lowed here. 

*  Tawney  v.  Lynn  &  Ely  Railway  Co.,  4  Railw.  Cas.  G1.5. 

*  Stamps  V.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railway  Co., 
G  Railw.  Cas.  123;  s.  c  7  Hare.  251. 

'  Webb  r.  Manchester  &  Leeds  Railway  Co.,  1  Railw.  Cas.  ."0;  Simpson 
r.  Lancaster  &  Carlisle  Railway  Co.,  15  Sim.  58(1.  s.  c.  4  Railw.  Cas.  625; 
Williams  v.  South  Wales  Railway  Co.,  13  Jur.  443;  s.  c.  3  De  G.  &  S.  354. 

[•3G0J 


378     REMEDIES  BY  LAND-OWXERS  UNDER  ENGLISH  STATUTE.    [PART  III. 

to  take  any  lands  within  the  limits  of  deviation  for  a  branch 
railway.^  (^>) 

6.  But  it  was  held,  tliat  where  the  Commissioners  of  Woods 
and  Forests  gave  notice  of  taking  lands  for  a  public  park,  as  they 
were  acting  in  a  public  capacity,  the  notice  given  by  them  did  not 
constitute  a  quasi  contract,  enforceable  by  mandamus.^ 


SECTION  V. 

Notice  may  he  Waived. 


1.  Notice  must  be  set  forth  in  proceedings. 

2.  Agreement  to  waive  operates  an  es- 

toppel. 


3.  Certiorari  denied  where  party  has  suf- 
fered no  injury. 


§  90.  1.  It  is  a  general  rule,  in  regard  to  all  summary  and  in- 
ferior jurisdictions,  that  the  basis  of  tlieir  jurisdiction  must  appear 
upon  the  face  of  the  proceedings.^  Hence  in  proceedings  to  take 
land  in  invitian,  under  a  notice  to  treat,  the  notice  being  regarded 
*  as  essential  to  the  jurisdiction,  it  has  more  generally  been  held 
indispensable  to  the  jurisdiction  that  it  should  be  set  forth  upon 
the  proceedings.^ 

2.  But  where  the  land-owner  enters  into  negotiation  with  th.' 
company,  and  agrees  to  waive  the  notice,  he  is  afterwards  estopped 
from  taking  the  objection,  that  he  never  received  notice.-  (a) 
And  it  was  held,  that  the  party  whose  duty  it  was  to  give  the 
notice,  and  who  was  shown  by  the  returns  to  have  appeared  before 
the  jury,  cannot  object  to  the  inquisition  upon  the  ground  that  it 
did  not  disclose  a  proper  notice  to  treat.^ 

®  Sadd  V.  Maldon,  Withan,  &  Braiiitree  Railway  Co.,  6  Exch.  143;  s.  c. 
2  Eng.  L.  &  Eq.  410. 

^  (iueen  v.  Woods  &  Forests  Commissioners,  15  Q.  B.  761. 

1  Rex  V.  Bagshaw,  7  T.  R.  363;  Rex  v.  Mayor  of  Liverpool,  4  Bur.  2211, 
Rex  V.  Norwich  Roads  Trustees,  5  A.  &  E.  563. 

2  Regina  v.  South  Holland  Drainage  Committee,  8  A.  &  E.  429. 

3  Regina  v.  Swansea  Harbor  Trustees,  8  A.  &  E.  439. 

(h)  This  is  affirmed  in  Murphy  v.  (a)  Notice  may  also  be  withdrawn. 

Kingston  &  Pembroke  Railway  Co.,  Grierson  r.  Cheshire  Lines  Committee, 

11  Out.  Ch.  302.  Law  Rep.  19  Eq.  83. 
[*361] 


§  91.]        TITLE    OF    CLAIMANT    MUST    BK    DISTINXTLY    STATF:D. 


870 


3.  In  another  case,  where  aj)plication  was  made  to  the  King's 
Bench  to  issue  a  certiorari^  to  bring  up  and  quash  an  inquisition 
for  land  damages  in  a  railway  case,  on  the  ground  of  some  alleged 
defect,  the  court  say,  the  granting  the  writ  is  matter  of  discretion, 
though  there  are  fatal  defects  on  the  face  of  the  proceedings  whidi 
it  is  sought  to  bring  u]) ;  and  that  it  is  almost  an  invariable  rule 
to  deny  the  writ,  where  it  ai)i)cars  the  i)arty  has  suffered  no  injury 
or  has  assented  to  the  proceedings  below.* 


SECTION  VI. 


Title  of  the  Claimant  must  be  distinctly  stated. 


1.  Claimant's  reply  to  notice  should  be 

dear  and  accurate. 

2.  Award    had,    which    does    not    state 

claimant's  interest. 


3.  Lands  lield  by  receiver  or  commission 
for  a  lunatic. 
u.  o.  Analogous  American  cases. 


§  91,  1.  In  reply  to  a  notice  to  treat,  the  claimant  may  state 
the  particulars  of  his  claim  and  proceed  to  treat.  In  this  case  the 
statement  should  give  a  clear  description  of  the  claimant's  inter- 
est in  the  land,  as  a  defect  here  is  liable  to  alTect  the  validity  of 
the  after  ])roccedings. 

2.  In  one  case  where  the  claimant's  answer  to  the  notice  to 
treat  stated  that,  as  trustees  under  a  will,  they  claimed  an  estate 
in  copyhold,  and  a  certain  sum  as  compensation  for  their  interest 
in  the  lands,  and  appointed  an  arbitrator,  and  the  other  party 
*api)ointing  one,  and  an  umi)ire  being  agreed  upon,  he  awarded  a 
certain  sum  as  the  value  to  be  paid  to  the  ti-ustecs  "  for  the  pur- 
chase of  the  fee-simple,  in  possession,  free  from  all  incum- 
brances ; "  the  company  applying  to  set  aside  the  award,  upon 
the  ground  that  other  persons  claimed  an  interest  in  the  lands, 
the  court  held  tlie  award  Ijad,  for  not  fnuling  the  interest  of  the 
claimants  in  the  land,  or  that  they  had  a  fee-simple  whicli  it  n|>- 
praiscd.  But  the  court  did  not  set  the  award  aside,  but  left 
the  company  to  dispute  it  when  it  should  be  attempted  to  be 
enforced.  1 

*  Regina  v.  Manchester  &  Leeds  Railway  Co.,  8  .V.  &  E.  413. 
^  North  Staffordshire  Railway  Co.  v.  Landor,  2  Exch.  23.3. 

[*0G2J 


380     REMEDIES  BY  LAND-OWNERS  UNDER  ENGLISH  STATUTE.    [PART  III. 

3.  If  the  lands  arc  in  possession  of  a  receiver,  or  the  committee 
of  a  lunatic,  a  special  application  should  be  made  to  the  Court  of 
Chancery .2  The  claimant  cannot  object  that  the  award  describes 
the  land  as  a  fee-simple  in  possession,  whereas  the  land  is  in  pos- 
session of  a  tenant.  Lord  Denman,  C.  J.,  in  giving  judgment, 
says,  "  The  answer  is  that  such  assumption,  if  really  made,  is  in 
favor  of  the  claimant,  and  therefore  no  matter  of  complaint  for 
him.  But  it  docs  not  appear  clearly  that  any  such  assumption 
was  made.  The  expression  'fee-simple  in  possession,'  in  the 
claim,  is  used  in  contradistinction  to  fee-simple  in  reversion  or 
remainder."  ^ 

2  In  re  Taylor  &  York  North  Midland  Railway  Co.,  1  Hall  &  T.  432 ;  s.  c. 
6  Raihv.  Cas.  741. 

3  In  re  Bradshaw,  12  Q.  B.  562.  The  vendor  of  land  to  a  railway  company 
does  not  waive  his  lien  for  damages  by  accepting  a  certificate  of  deposit  for  the 
purcliase-money,  the  money  not  being  paid  when  called  for.  Minis  v.  Macon 
&  Western  Railroad  Co.,  3  Kelly,  333.  Where  a  company  i-eceived  a  grant  of 
certain  salt  mines,  subject  to  a  condition  which  it  did  not  comply  with,  but  re- 
tained the  lands  for  a  different  purpose,  and  afterwards,  when  the  period  for 
performing  the  condition  had  exjjired,  a  general  grant  of  all  unoccupied  salt 
lands  in  the  state,  necessary  to  use  for  constructing  a  railway',  was  made  to  a 
railway  company,  which  proceeded  and  occupied,  it  was  held  that  tbe  first 
grantors  had  no  interest  or  title  enabling  them  to  maintain  an  action  for  dam- 
ages.    Parmelee  v.  Oswego  &  Syracuse  Railroad  Co. ,  7  Barb.  599. 

Under  the  statute  of  Pennsylvania  which  gives  the  right  to  construct  lateral 
railways  over  intervening  lands,  to  the  owner  of  lands,  mills,  quarries,  coal,  or 
other  mines,  lime-kilns,  or  other  real  estate,  in  the  vicinity  of  any  railway, 
canal,  or  slack-water  navigation,  it  has  been  held,  that  one  in  possession 
of  land,  in  which  there  is  a  coal-mine,  who  has  erected  a  dwelling-house,  is  an 
owner  of  the  mine  within  the  meaning  of  the  act.  Shoenberger  v.  Mulhollau, 
S  Penn.  St.  134.  It  is  sufficient  in  such  case  that  the  petition  be  signed  by 
the  lessee  and  agent  of  the  owner.  Harvey  v.  Lloyd,  3  I'enn.  St.  331.  It  is 
considered  necessary  that  the  mortgagee  of  land  should  become  a  party  to  the 
proceedings  for  condemning  or  granting  land  to  a  railway,  in  order  to  give 
good  title  to  the  company.  Stewart  v.  Raymond  Railroad  Co.,  7  Sni.  &  M. 
5G8.  Or  that  he  should  give  his  consent,  in  writing,  to  the  proceeding  taken 
by  the  mortgagor  in  the  case.  Meacham  v.  Fitchburg  Railroad  Co.,  4  Cu.sh. 
291;  s.  c.  1  Am.  Railw.  Cas.  584;  s.  c.  1  Redf.  Am.  Raihv.  Cas.  276.  But 
the  mortgagor  may  recover  the  full  amount  of  damage,  without  regard  to 
mortgages.  Breed  v.  Eastern  Railroad  Co.,  5  Gray,  470.  AVhere  the  state 
held  land  for  a  state  prison,  and  granted  the  charter  of  a  railway,  in  the  usual 
form,  authorizing  the  company  to  locate  the  road,  so  that  it  might  pass  over 
the  land  of  the  state  so  held,  but  without  any  expression  in  the  act  of  a  design 
to  aid  the  company  in  its  undertaking,  it  was  held  the  state  might  recover 
[*3G2] 


§  92.]     CLAIM  OF  LAND-OWNER  MUST  CORRESPOND  WITH  NOTICE.      381 

♦SECTION  YIL 

Claim  of  Land-owner  must  correspond  tvith  Notice. 

§  02.  In  one  case  the  claim  of  tlie  land-owner  described  more 
land  than  the  notice  to  treat,  being  intersected  land,  less  than  one- 
half  acre,  which  the  company  are  bound  to  take  if  so  required. 
But  the  claim  did  not  properly  designate  the  portion  which,  it  was 
claimed,  the  company  should  take  under  their  notice,  and  that 
which  they  were  required  to  take,  as  intersected  land.  The 
umpire  received  evidence  as  to  the  value  of  the  intersected  land, 
and  awarded  one  entire  sum  as  compensation  for  the  whole. 
Held  that  the  award  was  bad,  there  being  no  valid  submission 
as  to  intersected  lands. ^ 

damages  for  the  land  taken.  The  court  say  they  think  if  the  legislature  had 
intended  to  aid  the  enterprise  by  an  appropriation  of  money,  land,  or  other 
means,  the  purpose  to  do  so  would  have  been  in  some  way  expressed.  Com- 
monwealth V.  Boston  &  Maine  Railroad  Co.,  3  Cush.  25;  s.  c.  1  Am.  Raihv. 
Cas.  482,  496,  497. 

1  North  Staffordshire  Railway  Co.  v.  Wood,  2  Exch.  244. 

[*363] 


382 


ENTRY   BEFOKE   COMPENSATION   IS   ASSESSED.      [PART  III. 


*CHAPTER    XITI. 

ENTRY   ON   LANDS   BEFORE    COMPENSATION   IS   ASSESSED. 
SECTION    I. 

Lands  taken  or  Injuriously  Affected^  ivithout  previous  Compensa- 
tion to  Parties. 


Under  English  statutes  no  entry  with- 
out previous  compensation,  except 
for  preliminary  survey. 

Remedies  against  company  offending. 

Taking  possession  under  statute,  what 
acts  constitute. 


Company  may  enter  with  land-owner's 
consent  after  agreement  for  arbitra- 
tion. 

Or  on  giving  a  bond  conditioned  for 
payment  or  deposit  of  value  of  land. 

Company  restrained  from  using  land 
until  price  paid. 


§  93.  1.  The  eighty-fourth  section  of  the  English  statute,  The 
Lands  Clauses,  <fec.,  provides,  that  no  entry  shall  be  made  upon 
any  lands  by  the  company  until  compensation  shall  have  been 
made  under  the  act,  or  deposited  in  the  Bank  of  England,  except 
for  the  purpose  of  preliminary  surveys  and  probing  or  boring  to 
ascertain  the  nature  of  the  soil,  which  may  be  done  by  giving 
notice,  not  more  than  fourteen  days  or  less  than  three  days,  and 
making  compensation  for  any  damage  thereby  occasioned  to  the 
owners  or  occupiers  of  such  lands. 

2.  It  has  been  considered  that  if  the  company  enter  upon  lands 
without  complying  with  the  requisitions  of  the  statute,  they  are 
liable  in  trespass  or  ejectment.^  (a)     And  in  some  cases  an  injunc- 

*  Hutchinson  v.  Manchester,  Bury,  &  Rosendale  Railway  Co.,  14  M.  &  W. 
687;  Graham  v.  Cohimbus  &  Indianapolis  Railroad  Co.,  27  Ind.  260.  In  this 
country  a  legislature  may  give  railway  companies  the  right  to  enter  upon  land.s 
for  the  purpose  of  preliminary  surveys  without  compensation.  Fox  v.  West- 
ern Pacific  Railroad  Co.,  31  Cal.  538. 


(f{)   Smith  V.  Chicago  &  Alton  Rail- 
road Co.,  67  111.  191 ;  Hibbs  v.  Chicago 
&  Southwestern  Railway  Co.,  39  Iowa, 
340;  Ring  v.  Mississippi  River  Bridge 
[*364J 


Co.,  57  Mo.  496;  Conger  v.  Burling- 
ton &  Southwestern  Railway  Co.,  41 
Iowa,  419;  Donald  v.  St.  Louis,  Kan- 
sas City,  &  Xorthern  Railway  Co.,  52 


§  93.] 


LANDS   TAKEN    OR    INJURIOUSLY    AFFECTED. 


383 


tion  will  be  frraiitcd.('^')     J>ut  wlicrc  tlic  company  entered  to  make 
preliminary  surveys,  without  giving  the  requisite  notice,  the  court 


Iowa,  411;  Leber  v.  ^linneapolis  & 
Northwestern  Kailway  ("o.,  29  Minn. 
250;  Rusch  r.  Milwaukee,  Lake  Shore, 
&  Western  Railway  Co.,  54  Wis.  136. 
And  mere  delay  in  proceeding  without 
knowletlge  of  or  acquiescence  in  the 
acts  of  tlie  company  will  not  estop  the 
owner.  Bothe  v.  Dayton  &  Michigan 
Railroad  Co.,  37  Ohio  St.  147.  Xor 
will  mere  permission  to  enter  and  con- 
struct the  road.  Conger  i'.  Burlington 
&  Southwestern  Railway  Co.,  41  Iowa, 
419.  Nor  will  mere  silence  and  inac- 
tion with  knowledge  that  the  company 
is  proceeding  to  construct  its  road. 
Walker  v.  Chicago,  Rock  Island,  & 
Pacific  Railroad  Co.,  57  ^lo.  275. 
But  where  the  company  expends 
money,  &c.,  it  will  be  otherwise.  The 
owner  may  not  then  have  an  eject- 
ment. New  Orleans  &  Selma  Rail- 
road Co.  IV  Jones,  68  Ala.  48;  Pryz- 
bylowicz  r.  Missouri  River  Railroad 
Co.,  17  Fed.  Rep.  492.  But  he  may 
still  have  his  action  for  damages. 
Ring  V.  Mississippi  River  Bridge  Co., 
57  Mo.  490.  And  if  one  of  two  ten- 
ants in  common  convey  a  right  of  way 
on  conditions  which  tlie  company  does 
not  perform,  the  grantor  may  have  an 
action  for  damages  for  breach  of  con- 
tract, and  his  cotenant  an  action  for 
trespa.ss.  Rush  v.  Burlington,  Cedar 
Rapids.  &  Northern  Railway  Co.,  57 
Iowa,  201.  An  abutting  owner  may 
have  ejectment  where  the  company 
lays  its  track  in  tlie  street,  if  he  own 
the  fee.  Terre  Haute  &  Southeastern 
Railroad  Co.  v.  Rodel,  S9  Ind.  128. 
Tlie  owner  cannot  recover  damages 
for  the  taking  where  he  can  recover 
the  land  itself.  Atlantic  &  Great 
Western  Railway  Co.  v.  Robbins, 
35  Ohio  St.  531.      As  to  what  may 


be  recovered  as  damages,  see  Morin 
i\  St.  Paul,  Minneapolis,  &  Manitoba 
Railway  Co.,  30  Miim.  100;  Leber 
V.  Minneapolis  &  Northwestern  Rail- 
way Co.,  29  Minn.  256;  Chicago  & 
Iowa  Railroad  Co.  v.  Davis,  80  111.  20; 
Ilartz  V.  St.  Paul  &  Sioux  City  Rail- 
road  Co.,  21  Minn.  358.  As  to  fixtures 
put  upon  the  land  by  the  trespassing 
company,  see  California  Pacific  Rail- 
road Co.  V.  Armstrong,  46  Cal.  85; 
Justice  V.  Nesquehoning  Valley  Rail- 
road Co.,  87  Penn.  St.  28;  ^lorgan  i'. 
Chicago  &  Northeastern  Railroad  Co., 
39  Mich.  675;  Toledo,  Ann  Arbor,  & 
Grand  Trunk  Railway  Co.  r.  Dunlap, 
47  Mich.  450 ;  Van  Size  r.  Long  Island 
Railroad  Co.,  3  Ilun,  013;  Blue  Earth 
County  V.  St.  Paul  &  Sioux  City  Rail- 
road  Co.,  28  Minn.  503;  Greve  v.  St. 
Paul  &  Pacific  Railroad  Co.,  26  Miim. 
66;  Jones  i'.  New  Orleans  &  Selma 
Railroad  Co.,  70  Ala.  227.  As  to 
punitive  damages,  see  Anderson  Rail- 
road Co.  I'.  Kernodle,  54  Ind.  314. 
For  a  second  intrusion  tlie  owner  may 
maintain  a  second  action.  Illinois  & 
St.  Louis  Railroad  &  Coal  Co.  i;.  Cobb, 
82  111.  183. 

(Ii)  An  attempt  to  take  land  with- 
out valid  proceedings  for  its  condemna- 
tion, may  be  restrained  by  injunction. 
Bohlman  v.  Green  Bay  &  Minnesota 
Railway  Co.,  40  Wis.  157.  So  of  an 
attempt  to  take  possession  without 
assent  and  j^ayment  or  tender  of  pay- 
ment. Northern  Pacific  Railroad  Co. 
V.  Barnesville  &  Mo«irhead  Railroad 
Co.,  4  Fed.  Rep.  298;  Diedrichs  r. 
Northwestern  Union  Railway  Co.,  33 
Wis.  219;  White  i'.  Nashville  &  North- 
western Railroad  Co.,  7  Ileisk.  518; 
Provolt  I".  Chicago,  Rock  Island.  & 
Pacific  Railroad  Co.,  69  Mo.  633; 
[•364] 


384  ENTRY   BEFORE    COMPENSATION   IS   ASSESSED.       [PART   III. 

refused  to  order   the  injunction,  but   reserved  the   question   of 
costs.^ 

*  3.  And  where  the  entry  was  regularly  made  upon  the  land,  for 
preliminary  surveys,  and  afterwards  the  contractors,  without  the 
knowledge  of  the  corporation,  but  with  the  consent  of  the  occupy- 
ing tenants,  brought  some  of  their  wagons  and  rails  and  other 
implements  upon  the  land,  but  did  not  commence  the  works  or  do 
any  damage,  and  this  was  without  the  assent  of  the  owner,  and 
his  agent  thereupon  filed  a  bill  to  obtain  an  injunction  against 
taking  possession  of  the  lands  until  they  had  complied  with  the 
statute,  tlie  Vice-Chancellor  said,  that  although  the  company  were 
bound  by  the  acts  of  their  contractors,  the  acts  done  were  not  a 
taking  possession  within  the  meaning  of  the  statute,  and  that  the 
bill  was  improperly  filed. ^ 

4.  But  where  the  company  agreed  with  the  land-owner  that  the 
question  of  compensation  should  be  settled  by  arbitration,  and 
thereupon  entered  upon  the  land,  by  consent  of  the  owner,  and  the 
arbitrator  made  an  award,  which  became  the  subject  of  dispute, 
and  the  owner  thereupon  gave  the  company  notice  to  quit,  and 
brought  ejectment,  it  was  held  he  could  not  recover,  although  the 
company  had  not  tendered  the  money  awarded,  or  a  conveyance, 
but  that  the  owner's  remedy  was  to  proceed  upon  the  award.* 

2  Fooks  V.  Wilts,  Somerset,  &  Weymouth  Railway  Co.,  5  Hare,  199;  8.  c 
4  Railw.  Cas.  210.  In  this  case  the  injunction  was  denied,  chiefly  on  the 
gi'ound  that  the  alleged  trespass  was  complete  before  the  application.  The 
court  intimate  that  if  the  company  vshould  attempt  to  proceed  further  it  might 
be  proper  to  restrain  it  by  injunction.  The  point  that  the  company  was  in 
the  wrong,  is  distinctly  recognized. 

8  Standish  v.  Liverpool,  1  Drewry,  1;  s.  c.  15  Eng.  L.  &  Eq.  255. 

*  Hudson  V.  Leeds  &  Bradford  Railway  Co.,  16  Q.  B.  796;  s.  c.  6  Eng.  L. 
&  Eq.  283.     The  decision  here  goes  chiefly  on  the  ground  of  the  consent  of 

Freshwater  v.  Pittsburg,  Wheeling,  &  Ga.  614,  where  equity  interposed  in 

Kentucky  Railroad  Co.,  6  W.  Va.  503;  peculiar  circumstances.  But  see  Reras- 

Omaha  &  Northwestern  Railroad  Co.  hart  v.  Savannah  &  Charleston  Rail- 

V.  Menk,  4  Neb.  21;  Ray  v.  Atchison  road  Co.,  54  Ga.  579,  where  the  court 

&  Nebraska  Railroad  Co.,  4  Neb.  439.  said  there  was  a  remedy  at  law,  and 

And  see  Irish  v.  Burlington  &  South-  Watson  r.  New  York,  West  Shore,  & 

western  Railroad  Co.,  44  Iowa,  380;  Buffalo   Railroad   Co.,  64   How.   Pr. 

Evans  V.  Missouri,  Iowa,  &  Nebraska  220,  in  which   the  court  refused  an 

Railway  Co.,  64  Mo.  453;  Gammage  injunction. 
I".  Georgia  Southern  Railroad  Co.,  65 
[*865] 


§  I);].]  LANDS   TAKEN    OR    INJURIOUSLY    AFFECTKD.  385 

The  notice  to  quit  under  the  ciicumstanccs  did  not  make  the 
comjKiny  trcspas.scrs. 

5.  By  the  ciglity-fifth  section,  if  the  company  find  it  necessary 
to  enter  upon  land,  for  the  purjiosc  of  carrying  forward  their 
works,  before  tlie  amount  of  compensation  can  be  settled,  they 
may  deposit  in  the  bank  the  amount  claimed,  or  in  other  cases  the 
appraisal,  and  also  give  the  party  a  bond  with  surety,  to  be  ap- 
proved by  two  justices,  in  a  penal  sum  equal  to  the  amount  so 
deposited,  conditioned  for  the  payment  or  deposit  of  the  amount 
finally  fixed  as  the  ultimate  value  and  interest  thereon,  and  then 
take  possession  of  the  laud  and  proceed  with  their  works.  The 
company  can  obtain  their  money  so  soon  as  the  condition  of  the 
bond  lias  been  complied  with.  But  the  vendor  must  join  in  the 
petition  for  the  money  to  be  paid  the  company,  or  else  it  must 
*  be  shown  that  he  has  been  served  with  a  copy  of  the  petition.^ 

the  land-owner  to  the  entry  of  the  company,  and  to  a  reference  of  the  question 
of  compensation  to  an  arbitrator. 

6  Ex  parte  South  Wales  Railway  Co.,  6  Railw.  Cas.  151.  But  in  Ex  parte 
Eastern  Counties  Railway  Co.,  5  Railw.  Cas.  210,  the  money  was  ordered  to 
be  paid  to  the  company  on  affidavits  showing  the  claim  settled.  The  land- 
owner has  no  lien  on  the  money  deposited  for  costs,  but  the  company  is  en- 
titled to  the  money  on  payment  of  the  sura  finally  settled  for  the  value  of  the 
land.  Ex  parte  Great  Northern  Railway  Co.,  5  Railw.  Cas.  269;  London  & 
South  Wales  Railway  Co.,  5  Railw.  Cas.  437.  The  bond  must  be  given  in  the 
veiy  terms  of  the  statute.  Hosking  v.  Phillips,  3  Exch.  1G8,  opinion  of  Pai{KE,  li. 
And  it  will  make  no  difference  that  the  obligee  is  a  gainer  by  the  deviation 
from  the  statute.  Poynder  v.  Great  Northern  Railway  Co.,  IG  Sim.  3;  s.  c.  .5 
Railw.  Cas.  19G.  But  where  the  company  chooses  to  treat  for  the  claimant's 
title  only,  it  is  sufficient  if  the  bond  follow  the  statute,  so  far  as  it  applies  to  that 
particular  case.  Willey  v.  Southeastern  Railway  Co.,  1  Hall  &  T.  56;  .s.  c.  0 
Kailw  Cas.  100.  If  the  company  enters  by  consent  of  the  tenant,  and  does  per- 
manent damage  to  the  land,  the  owner  may  nevertheless  obtain  an  injunction 
and  compel  a  deposit  and  the  giving  of  a  bond  as  required  by  the  statute. 
.\rrastrong  v.  Waterford  &  Limerick  Railway  Co.,  10  Irish  Eq.  60.  If  there 
be  a  mortgage  on  land,  the  company  must  treat  with  the  mortgagee,  or  pro- 
vide for  tlie  expen.se  of  reinvestment  for  his  benefit,  or  the  entry  will  be  re- 
garded as  unlawful.  Ranken  v.  East  &  West  Ir.dia  Docks  &  Birmingham 
Junction  Railway  Co.,  12  Beav.  298;  19  Law  J.  Ch.  iri3.  Under  the  general 
statutes,  in  many  of  the  American  states,  where  there  are  conflicting  claims  to 
the  land  required  by  a  railway  company,  the  company  is  required  to  make 
application  to  the  Court  of  Chancery,  and  dei^sit  the  uioney  in  bank,  subject 
to  the  final  order  of  that  court.  In  such  case  it  has  been  considered  that  the 
company  has  no  interest  in  the  controversy,  after  dejxjsiting  the  money  for  the 
price  of  the  land.  Haswell  v.  Vermont  Central  Railroad  Co.,  23  Vt.  228. 
VOL.  I. -25  [*3GG] 


386 


ENTRY   BEFORE   COMPENSATION    IS   ASSESSED.       [PART   III. 


It  does  not  invalidate  the  bond,  if  it  bear  date  before  the  date  of 
the  vakiation.^ 

6.  "Wlicrc  a  railway  company  took  land  for  the  construction  of 
their  road,  without  paying  the  price,  and  after  completing  their 
works  leased  the  line  to  another  company,  it  was  held,  upon  a  bill 
against  both  companies,  to  compel  the  payment  of  the  land  dam- 
ages, that  a  decree  must  pass  for  the  plaintiff  for  payment  by  the 
first  company,  and  in  default  that  both  companies  be  restrained 
from  using  the  land.^  But  where  the  price  of  lands  so  taken 
had  been  secured  by  bond,  which  had  not  been  paid,  it  was  held 
the  company,  after  having  constructed  their  road,  could  not  be  re- 
strained *  by  injunction  from  continuing  to  occupy  the  land  until 
they  paid  the  purchase-money.^  And  this,  it  seems  tO  us,  is  the 
correct  view  of  the  matter,  that  the  land-owner,  by  accepting  secu- 
rity, or  even  the  promise  of  the  company,  for  land  damages,  and 
allowing  them  to  apply  the  laud  to  the  purposes  of  constructing 
their  works,  so  essentially  converted  its  nature  as  to  lose  all  lien 
upon  it  for  the  price.^ 


SECTION   II. 


Proceedings  requisite  to  enable  Company  to  enter. 


1.  Provisional  valuation   under  English 

statutes. 

2.  Irregularities  in  proceedings. 

3.  Penalty  for  irregular  entry  upon  lands. 


4.  Entry  after  verdict  estimating  dam- 

ages, but  before  judgment. 

5.  Charter  mode  of  assessing  damages  not 

superseded  by  subsequent  general 
act. 


§  94.  1.  In  some  cases  specified  in  tlic  English  statute,  it  is 
necessary  to  have  a  provisional  valuation  of  land,  by  a  surveyor 
appointed  by  two  justices,  to  determine  the  amount  of  the  security 

^  Stamps  r.  Birmingham,  Wolverhampton,  &  Stour  Valley  Railway  Co  ,  0 
Railw.  Cas.  123. 

■'  Cozens  v.  Bognor  Railway  Co.,  Law  Rep.,  1  Ch.  Ap.  594,  Turner,  L.  J., 
dissenting.     But  see  supra,  §  73,  note  7. 

8  Pell  V.  Northampton  &  Banbury  Railway  Co.,  Law  Rep.  2  Ch.  Ap.  100; 
s.  c.  12  Jur.  N.  8.  897.  The  lessee  is  a  proper  party  in  such  case.  Winchester 
V.  MiJ-hants  Railway  Co.,  Law  Rep.  5  Eq.  17. 

^   Supra,  §  73,  and  notes;  §  65,  pi.  6,  and  cases  cited. 
[*367] 


§  'J4.]  PROCEEDINGS    REQUISITE.  887 

to  be  frivcn  before  the  entry  of  the  company  upon  the  land. 
Wlicre  in  such  cases  the  justices  appointed  a  surveyor,  who  had 
all  along  acted  for  the  company,  to  appraise  the  value,  it  was 
held  no  sulhcient  reason  to  interfere,  by  injunction,  but  the  court 
reprobated  such  a  practice.  The  court  also  declined  to  interfere, 
by  injunction,  on  the  ground  that  the  sureties  on  the  bond  were 
the  company's  solicitors,  and  were  upon  similar  bonds  to  a  large 
amount.^ 

2.  In  the  same  case  it  was  considered  that  depositing  money 
and  executing  a  bond  to  tenants  in  common,  in  their  joint  names, 
was  irregular.^  It  was  held  that  the  proceedings  under  the  S.lth 
section  of  the  English  act,  to  obtain  possession  of  the  land  before 
the  *  amount  of  compensation  is  settled,  may  be  ex  parte,  and  al- 
together without  notice.^ 

3.  The  English  statute  subjects  the  company  to  a  penalty  for 
entering  upon  lands  before  taking  the  steps  required  by  the 
statute,  but  provides,  that  the  penalty  shall  not  attach  to  any  com- 
pany who  have  bona  fide  done  what  they  deemed  to  be  a  com- 
pliance with  the  statute.^ 

4.  If  one  enter  upon  lands  after  verdict  estimating  damages, 
but  before  judgment  on  the  verdict,  he  is  liable  in  trespass,  but 
only  for  the  actual  injury,  and  not  for  vindictive  or  exemplary 
damages.*  («) 

1  Langliam  v.  Great  Northern  Railway  Co.,  1  De  G.  &  S.  48G;  s.  c.  5 
Railw.  Cas.  2G5,  2GG.  This  case  was  in  favor  of  five  phiintiffs,  three  tenants 
in  common,  and  two  devisees  in  trust  for  the  sale  of  the  lands,  and  it  was 
queried,  whether  there  was  not  a  misjoinder. 

2  Bridges  v.  Wilts,  Somerset,  &  Weymouth  Railway  Co.,  4  Railw.  Cas.  GJ2. 
Thi.s  is  a  decision  of  the  Lord  Chancellor  affirming  that  of  the  Vice-Chan- 
cellor  of  England.  Poynder  r.  Great  Northern  Railway  Co.,  IG  Sim.  3;  s.  c. 
5  Railw.  Cas.  19G.  In  this  case  the  bond  was  held  to  be  informal,  for  being 
made  to  be  performed  "  on  demand; "  and  the  Lord  Chancellor  refused  a  per- 
petual injunction,  but  allowed  it  till  the  bond  was  corrected.  ^ 

'  Hutchinson  v.  Manchester,  Bury,  &  Rosendale  Railway  Co.,  15  M-  &  W. 
314.  PoLLOCic,  C.  B.,  thus  lays  down  the  rule  of  construction  of  this  statute: 
"  A  penal  enactment  ought  to  be  .strictly  con.strued,  but  a  proviso,  which  has 
the  effect  of  saving  parties  from  the  consequences  of  a  penal  enactment,  should 
bo  liberally  construed. 

*  Harvey  v.  Thomas,  10  Watts,  63. 


(a)    As  to  trespass  as  a  remedy  for  the  land-owner  generally,  see  supra, 
§03. 

[*368] 


388        '  ENTRY   BEFORE   COMPENSATION    IS   ASSESSED.       [PART   III. 

5.  It  has  often  been  made  a  question  in  this  country,  where 
the  charter  of  a  railway  provides  one  mode  of  assessing  land 
damages,  and  a  subsequent  general  railway  act  provides  a  dif- 
ferent mode,  which  the  company  are  bound  to  pursue.  It  has 
been  held  the  company  might  still  pursue  the  course  pointed  out 
in  their  charter.^ 


SECTION   III. 

3Iode  of  obtaining  Compensation  where  no  Compensation  is 

offered. 

1.  Claimant  may  have  an  assessment  by  i  2.  Method  of  procedure  in  either  case, 
arbitrators  or  by  jury.  | 

§  95.  1.  Where  land  is  taken  by  the  company,  or  injuriously 
affected  by  their  works,  and  no  compensation  has  been  offered  by 
the  company,  the  claimant  may,  where  the  amount  exceeds  *  X50, 
have  the  same  assessed,  either  by  arbitrators  or  a  jury,  at  his 
election. 

2.  If  he  desire  to  have  the  same  settled  by  arbitration,  he 
shall  give  notice  to  the  company  of  his  claim,  stating  his  interest 
in  the  land  and  the  amount  he  demands,  and  unless  the  com- 
pany within  twenty-one  days  enter  into  a  written  agreement  tc 
pay  the  amount  claimed,  the  same  shall  be  settled  by  arbitration, 
in  the  manner  pointed  out  in  the  statute  ;  or,  if  the  party  desire 
to  have  the  same  settled  by  a  jury,  he  shall  so  state  in  his  notice 
of  claim,  and  unless  the  company  agree  to  pay  the  sum  claimed, 
in  the  manner  stated  above,  they  shall  within  twenty-one  days 
issue  their  warrant  to  the  sheriff  to  summon  a  jury  to  settle  the 
same,  in  the  manner  pointed  out  in  the  act,  and  in  default  thereof 
they  shall  be  liable  to  pay  the  amount  claimed,  to  be  recovered  in 
the  superior  courts.^ 

*  Visscher  v.  Hudson  River  Railroad  Co.,  15  Barb.  37;  Hudson  River  Rail- 
road Co.  V.  Outwater,  3  Sandf.  689;  supra,  §  72,  note  at  the  end. 
1   Statute  8  &  9  Vict.  c.  18,  §  08. 
[*369] 


§  9G.]      ONUS  OF  CARRYING  FORWARD  PROCEEDINGS.     *   389 

SECTION  IV. 
Onus  of  carrying  forward  Proceedings. 


1.  Onus  rests  on  claimant  after  company 
has  taken  possession. 

42.  Pending  questions  in  equity  first  dis- 
posed of.   Notice  of  warrant  for  j  ury . 


3.  Proceedings  cannot  be  had  unless  ac- 
tual possession  is  taken  or  injury 
done. 


§  9G.  1.  It  has  been  held,  under  the  English  statutes,  that 
after  the  company  have  taken  possession  of  land,  either  by  right 
or  by  wrong,  the  onus  of  taking  the  initiative  stejjs  to  have  the 
purchase-money  or  compensation  assessed,  lies  upon  the  claim- 
ant.^ («)  It  was  considered  in  this  case,  that  the  remedy  under 
the  sixty-eighth  section  ^  applied  to  all  cases  where  the  company 
took  possession  of  the  land  under  the  eighty-fifth  section .^ 

2.  But  if  questions  in  equity  are  pending,  they  must  be  dis- 
posed *  of  before  the  common-law  remedy  can  be  pursued.^  This 
was  a  case  where  the  determination  of  the  matters  pending  in 
equity  was  necessary  to  enable  the  parties  to  know  what  was  to 
be  submitted  to  the  assessors.*  In  proceedings  under  the  sixty- 
eiglith  section,  it  is  not  necessary  for  the  company  to  give  the 
claimant  notice  of  their  issuing  a  warrant  to  the  sheriff  to  sum- 
mon a  jury,  ten  days  before  they  issue  it,  as  is  required  in  ])ro- 
cccdings  under  the  other  sections.^      It  was   held,  that  if   the 

>  Adams  v.  London  &  Blackwall  Railway  Co.,  2  Hall  &  T.  285 ;  s.  c.  6  Railw. 
Cas.  271,  282.  It  was  also  considered,  in  this  case,  that  if  the  company  failed 
to  ])erform  its  duties  in  the  proceedings,  the  more  appropriate  remedy  waa 
mandamus,  and  not  specific  performance. 

-  See  supra,  §  !)5. 

«  See  supra,  §§  93,  94;  Armistead  v.  North  Staffordshire  Railway  Co.,  10 
Q.  B.  526;  s.  c.  4  Eng.  L.  &  Eq.  216. 

*  Southwestern  Railway  Co.  v.  Coward,  5  Railw.  Cas.  703;  s.  c.  1  Hall  &  T. 
377,  note. 

«  Railstone  v.  York,  Newcastle,  &  Berwick  Railway  Co.,  15  Q.  B.  lol.  Tliis 
case  is  questioned  in  Richardson  v.  Southeastern  Railway  Co.,  11  C.  B.  154; 

(«)  In  this  country  variously  regu-  17S.  Sherman  v.  Milwaukee,  Lake 
lated  by  statute.  In  Wisconsin,  the  Shore,  &  Western  Railroad  Co  ,  40  Wis. 
corporation  must  take  the  initiative.  645.  In  Arkansas,  either  party  may  afv 
So  in  Indiana.  Cox  v.  Louisville,  New  ply  for  an  assessment.  Cairo  &  Fulton 
Albany  &  Chicago  Railroad  Co,  48  lud.     lUilroad  Co.  f.  Trout,  :32  Ark.  17. 

[•370] 


390 


ENTRY   BEFORE    COMPENSATION   IS   ASSESSED.       [PART   III. 


claimant  recover  a  larger  sum  than  was  offered  by  the  company, 
he  is  entitled  to  recover  costs  under  section  sixty-eight,  as  well 
as  under  other  sections.^ 

3.  It  is  considered  that  the  land  must  be  actually  taken,  or 
actually  injuriously  affected  by  the  company,  before  the  claimant 
can  take  proceedings  under  section  sixty-eight.  Hence  if  the 
company  give  notice  of  their  intention  to  take  lands,  but  do  not 
afterwards  actually  take  possession  or  injuriously  affect  them,  the 
claimant  can  only  proceed  by  mandamus.  It  has  been  decided 
that  the  claimant  in  such  case  cannot  make  a  demand  of  a  cer- 
tain sum,  and  then  recover  it  if  the  company  do  not  issue  their 
warrant  to  the  sheriff.^ 


SECTION  V. 

Injunction  will  not  issue  because  Lands  are  being  injuriously 
affected,  without  Notice  to  Treat  or  previous  Compensation. 


1.  Company  proceeding  under  its  powers, 

claimant  must  wait  until  works  are 
completed. 

2.  Even    if   appearance  of  land  will  be 

greatly  altered. 


3.  How  far  equity  interferes   where  le- 

gal claim  of  party  is  denied. 

4.  Where  a  special  mode  of  compensation 

has  been  agreed  on. 


§  97.  1.  It  is  said  courts  of  equity  will  not  interfere  by  in- 
junction, because  lands  are  being  injuriously  affected  by  the 
*  company's  works,  and  no  notice  to  treat  or  previous  compensa- 
tion has  been  made,  if  it  appears  the  company  are  only  exercis- 
ing their  statutory  powers.  The  claimant  should  allow  the  works 
to  be  completed,  and  then  take  his  remedy  under  the  statute.^ 

2.  It  was  objected,  in  one  case,  that  the  company  would  be 
likely  to  greatly  alter  the  appearance  of  the  land  which  they  had 
entered  upon,  and  that  a  jury  could  not  understandingly  assess 


s.  c.  6  Eng.  L.  &  Eq.  426.  But  on  error,  in  the  Exchequer  Chamber,  9  Eng. 
L.  &  Eq.  464,  the  question  as  to  costs  was  affirmed,  and  the  court  said,  it  was 
not  necessary  to  say  whether  the  case  of  Railstone  v.  York,  Xewcastle,  &  Ber- 
wick Railway  Co. ,  was  to  be  considered  sound  or  not,  as  it  did  not  necessarily 
affect  the  question  before  the  court. 

^  Burkinshaw  v.  Birmingham  &  Oxford  Junction  Railway  Co.,  5  Exch. 
475. 

1   Statute  8  &  9  Vict,  c  18,  §  68. 
[*371] 


§  98.]  ARBITRATORS,    ETC.,   CANNOT   DETERMINE   TITLE. 


391 


the  value  after  the  damages  were  sustained,  but  the  court  said  it 
was  no  ground  for  the  interference  of  a  court  of  equity .2 

3.  The  courts  in  England  hold,  that  in  this  class  of  claims  it 
is  projjcr  to  wait  till  the  full  extent  of  the  injury  is  known.^ 
And  equity  will  not  enjoin  the  party  from  proceeding  under  the 
statute,  in  a  case  where  it  is  alleged  that  lie  lias  no  legal  claim 
under  the  statute,^  as  in  such  case  the  company  may  defend 
against  the  award,  and  this  seems  to  be  the  course  finally  deter- 
mined upon.  But  some  actions  at  law  have  been  brought  and 
sustained  to  try  the  right,  by  order  of  the  courts  of  equity .° 

4.  So,  too,  where  the  bill  alleges  that  the  ])arty  has  upon 
consideration  agreed  to  receive  compensation  in  a  ] (articular 
mode,  equity  will  enjoin  him  from  taking  proceedings  under  the 
statute.^ 

♦SECTION  VI. 


Right  in  the  Claimant  not  determined  hy  Jury  or  Arbitrator. 


1-3.  Arbitrators  and  sheriff's  jury  de- 
termine only  the  amount  of  dam- 
ages. 


4.  In  most  American  states  assessment  is 

final. 

5.  Plaintiff  will  recover  damages  assessed 

if  he  suffered  any  legal  injury. 


§  98.  1.  There  has  been  some  contrariety  of  opinion  among 
the  English  judges  in  regard  to  the  right  of  the  company,  before 

"  Langham  v.  Great  Northern  Railway,  1  De  G.  &  S.  486;  s.  c.  5  Railw. 
Cas.  20i}.  The  counsel  for  defendant  was  not  called  to  answer  this  portion  of 
plaintiff '.s  argument. 

8    Ilutton  V.  London  &  Soutliwestern  Railwaj'  Co.,  7  Hare,  'J.')!) 

*  East  &  West  India  Docks  &  Rirniingliain  JunctiDii  liailway  Co.  r. 
Gattke,  3  Macn.  &  G.  15.5;  s.  c.  3  Eng.  L.  &  Eq.  59;  South  StafTordsliire 
Railway  Co.  v.  Hall,  1  Sim.  n.  s.  373;  s.  c.  id.  105.  In  this  last  case,  the 
opinion  of  Lord.CRANWOUTii  seems  to  overrule  that  of  Lord  Cottkx'iam  in 
London  &  Northwestern  Railway  Co.  v.  Smith,  1  Ilall  &  T.  3(31;  s.  c.  5 
Railw.  Cas.  716.  Sutton  Harbor  Improvement  Co.  v.  Ilitchins,  15  Heav.  1(J1; 
8.  c.  0  Eng.  L.  &  Eq.  41;  London  &  Northwestern  Railway  Co.  r.  Ikadley, 
3  Macn.  &  G.  3G6;  s.  c.  G  Railw.  Cas.  551.  See  also  Monciiot  r.  Great  West- 
ern Railway  Co.,  1  Railw.  Cas.  567.  But  see  the  ca.se  of  Lancashire  &  York- 
shire Railway  Co.  c.  Evans,  14  Beav.  5-29;  s.  c.  19  Eng.  L.  &  Eq.  'J95,  where 
the  case  of  London  &  Northwestern  Railway  Co.  v.  Smith  is  still  further 
questioned. 

^  Glover  V.  North  Staffordshire  Railway  Co.,  IG  Q.  B.  OIl';  s.  c  5  Eng.  L. 
&  Eq.  335. 

8  Norfolk  V.  Tennaut,  9  Ilaro,  745 ;  s.  c.  10  Eng.  L.  &  Eq.  237. 

[*3T2] 


392  ENTRY    CEI-^ORE   COMPENSATION    IS    ASSESSED.       [PART   III. 

the  sheriff's  jury,  to  raise  the  question  of  the  claimant's  right  to 
recover  any  compensation,  under  the  sixty-eighth  section,  where 
lands  are  taken  or  alleged  to  be  injuriously  affected  by  the  works 
of  the  company,  and  whether  the  jury  can  go  into  any  inquiry 
beyond  that  of  the  value  of  the  claimant's  interest  in  the  land. 
The  latest  decisions  upon  this  point  hold,  that  the  jury  is  confined 
to  the  question  of  the  amount  of  compensation.^ 

2.  In  the  very  latest  English  case  (1857)  ,  upon  this  sub- 
jcct,2  (a)  the  judges  of  the  Court  of  Queen's  Bench  differed  in 
opinion,  and  delivered  opinions  seriatim.  Coleridge,  J.,  and  Lord 
Campbell,  C.  J.,  and  Wightman,  J.,  holding  that  the  jury  had 
nothing  before  them  but  the  quantum  of  damages,  and  that 
whether  the  company  declined  to  issue  their  warrant  to  the 
sheriff,  or  did  issue  it,  in  both  cases,  the  right  to  recover  any 
damage  on  account  of  a  claim  for  the  injurious  affecting  of  land 
was  to  be  tried  upon  the  action,  to  recover  the  amount  assessed, 
in  the  courts.  The  proceedings  under  the  statute  were  held, 
by  the  majority  of  the  court,  to  be  merely  for  the  purpose  of 
fixing  the  amount  of  the  claim.  If,  indeed,  the  company  stood 
still  upon  the  question  of  right,  they  were  liable,  in  the  event  of 
the  claimant's  recovery,  for  the  full  amount  of  the  claim  made ; 
but  if  they  proceeded  to  a  hearing  before  the  arbitrator  or  a 
jury,  *  whichever  course  the  claimant  should  elect,  they  might  not 
only  contest  the  amount  there,  but  the  right  of  any  recovery  in 
the  action  which  the  claimant  was  compelled  to  bring  to  obtain 
execution  against  the  company,  but  that  it  was  improper  to  go 
into  any  inquiry  before  the  arbitrator  or  the  jury,  in  regard  to  the 
right  to  recover  anything,  inasmuch  as  this  tended  improperly  to 
embarrass  the  mind  of  the  triers  in  regard  to  the  damages.  And 
in  this  case,  where  the  jury  went  into  the  question  of  right,  and 
determined  the  claimant  had  no  right,  but  added,  if  he  had  such 

1  Regina  v.  Metropolitan  Sewers  Commissioners,  1  Ellis  &  B.  694;  s.  c.  18 
Eng.  L.  &  Eq.  213. 

2  Regina  v.  London  &  Northwestern  Railway  Co.,  3  Ellis  &  B.  443;  8.  c 
25  Eng.  L.  &  Eq.  37.  And  the  same  rule  is  extended  to  the  finding  of 
arbitrators  that  premises  were  injuriously  affected  by  the  narrowing  of  a  way 
of  approach,  by  means  of  the  company's  embankment;  the  award  is  not  con- 
clusive on  the  point  of  the  injurious  effect.  Beckett  v.  Midland  Railway  Co., 
Law  Rep.  1  C.  P.  241. 

(a)  And  see  Chapman  v.  Monmouthshire  Railway  Co.,  2  H.  &  N.  267. 
[*373] 


§  99.]  EXTENT   OP    COMPENSATION   TO    LAND-OWNERS.  393 

right  his  claim  should  bo  valued  at  <£150,  the  uiajurity  oi  the 
court  determined  that  the  former  part  of  the  verdict  could  not  be 
rejected,  and  let  the  verdict  stand  as  a  good  finding  of  the  sum 
named  ;  which  last  point  seems  rather  too  refined  for  ccjinmun 
apprehension,  even  after  reading  attentively  the  elaborate  ojiinion 
of  the  majority  of  the  court  by  Coleridge,  J. 

3.  Mr.  Justice  Erle  dissented  from  the  principal  decision  of 
the  court,  and  held  the  verdict  good  in  all  respects.  But  this  case 
must  be  regarded  as  settling  the  question  of  the  right  of  the  jury 
to  pass  upon  the  claim  beyond  its  mere  amount,  at  least  under 
the  English  statutes. 

4.  In  most  of  the  American  states  the  assessment  of  land  dam- 
ages, by  whatever  tribunal,  becomes  final,  unless  appealed  from, 
and  execution  issues  without  resort  to  a  future  action ;  or,  if  an 
action  is  necessary  upon  awards  of  arbitrators,  this  will  not 
justify  a  re-examination  of  the  case,  either  upon  the  question  of 
title  or  amount  of  damages.  But  in  some  of  the  states,  tiie  pro- 
ceedings are  similar  to  those  above-named  in  the  English  courts.^ 

5.  And  under  the  English  statutes,  where  the  claim  is  for  in- 
juriously affecting  land,  the  plaintiff  must  recover  the  entire 
amount  of  damages  assessed  to  him  for  land  taken  by  a  railway, 
unless  the  defendant's  pleas  show  that  he  had  no  right  to  recover 
to  any  extent.* 


♦SECTION   VII. 

Extent  of  Compensation  to  Land-owners^  and  other  Incidents  by 
the  English  Statutes. 


1.  Liberal  compensation  allowed. 

2.  Decisions  under  English  statutes. 

3.  Limit  of  period  for  estimating  dam- 

ages. 


4.  Whether  claim  for  damages  passes  to 

the  devisee  or  executor. 

5.  Vendor  generally  entitled  to  damages 

accruing  during  his  time. 


§  99.  1.  In   one  of  the   early  cases  ^  upon  this  subject,  Lord 
Denman,  C.  J.,  said,  we  think  it  not  unfit  to  premise,  '*  that  where 

8  Supra,  §  72. 

*  Mortimer  v.  South  Wales  Railway  Co.,  5  Jur.  n.  s.  784;  s.  c.  1  Ellis  &  E. 
375. 

^  Regina  v.  Eastern  Counties  Railway  Co.,  2  Q.  B.  U17. 

[•374] 


394  ENTRY    BEFORE   COMPENSATION   IS    ASSESSED.       [PART   III. 

such  large  powers  are  intrusted  to  a  company  to  carry  their  works 
through  so  great  an  extent  of  country,  without  the  consent  of  the 
owners  and  occupiers  of  land  through  which  they  are  to  pass,  it 
is  reasonable  and  just  that  any  injury  to  property,  Avhich  can  be 
shown  to  arise  from  the  prosecution  of  those  works,  should 
be  fairly  compensated  to  the  party  sustaining  it."  But  this  must 
be  received  under  some  limitations.  For  it  is  supposable,  that  pos- 
sible remote  injuries  may  accrue  to  property,  of  a  general  and 
public  character,  which  it  was  never  intended  to  compensate,  (a) 

2.  Some  points  arising  under  the  English  statute  may  be  here 
referred  to.  It  was  held  that  where  the  powers  conferred  upon  a 
canal  company  were  unlimited  as  to  time,  no  limitation  as  to  their 
exercise  could  be  assigned,  so  as  to  require  their  exercise  within 
a  reasonable  time,  and  consequently  that  the  works  might  be  re- 
sumed at  any  period.^  Future  damages  to  accrue  to  land-owners 
cannot  be  estimated  properly  until  after  the  completion  of  the 
works.3  The  compensation,  when  given,  fixes  the  rights  of  the 
parties  upon  the  basis  of  its  estimation,  as,  if  the  estimation  is 
had  upon  the  footing  of  an  entire  severance  of  the  land,  the  land- 
owner has  no  right  to  cross  the  track.*  And  where  this  did  not 
*  sufficiently  appear  by  the  record  of  the  verdict,  that  not  having 
been  made,  held  that  parol  evidence  might  be  given  of  the  find- 
ing, and  of  the  grounds  upon  which  it  proceeded.* 

3.  Where  consequential  damages  to  existing  works  by  the 
erection  of  new  ones  are  required  to  be  compensated,  the  period 
for  estimation  is  limited  to  the  yearly  value  of  the  works,  antece- 
dent to  the  passing  of  the  act.^ 

2  Thicknesse  v.  Lancaster  Canal  Co.,  4  M.  &  W.  472.  Lord  Abinger, 
C.  B.,  intimates  an  opinion  here,  that  possibly,  after  a  long  delay  of  the  com- 
pany to  proceed  with  its  works,  and  the  erection  of  fences  and  buildings  by 
the  land-owners  in  faith  of  the  abandonment  of  the  works  by  the  company,  a 
court  of  equity  might  restrain  the  company  from  completing  the  enterprise, 
notwithstanding  the  grant  of  power  by  parliament;  but  that  a  court  of  law 
could  do  no  such  thing. 

8  Lee  V.  Milner,  2  j\L  &  W.  824. 

*  Manning  v.  Eastern  Counties  Railway  Co.,  12  M.  &  W.  237.  But  unless 
it  appeared  by  the  record  on  what  basis  the  assessment  was  made,  it  seems 
questionable,  whether,  on  general  principles,  oral  evidence  is  admissible  to 
show  that  basis.     Supra,  §  74,  note  6. 

6  Manning  i'.  Commissioner,  9  East,  165. 

(n)  As  to  damages  in  general,  see  supra,  §  71. 
[*375] 


S  100.] 


RIGHT   TO   TEMPORARY   USE   OF   LAND. 


395 


4.  The  devisee  is  entitled  to  elaiiu  consciiuential  damaf^es,  and 
not  the  executor.^  liut  wheic  one  contracted  to  sell  freeli<jld 
estates  and  died  before  the  money  was  paid  ;  under  the  Lond(m 
Bridge  Improvement  Act,  it  was  held  the  money  should  go  to  the 
executor.'^  But  the  cases  are  not  uniform  upon  this  subject,  and 
the  usual  course  seems  to  be,  that  the  money  for  consequential 
damage  goes  to  the  party  interested  in  the  inheritance,  or  else  is 
divided  according  to  the  interest  of  the  several  estates.^  In  one 
case  it  was  held,  that  the  vendee  was  entitled  to  compensation, 
which  accrued  during  the  time  of  the  vendor's  title,  but  not  li(pii- 
dated  till  after  the  conveyance.^ 

5.  But  in  general  the  vendor  is  entitled  to  land  damages  ac- 
cruing during  his  time,  although  not  collected,  and  often  where 
the  works  are  not  completed  till  after  the  conveyance. ^^  The 
presumption  is,  if  the  jury  assess  compensation  to  one  person, 
that  it  is  only  for  his  interest  in  the  premises.^^ 


*  SECTION    VIII. 

Right  to  Temporary  Use  of  land  to  enable  the  Company  to  make 
Erections  on  other  lands. 


1.  Riglit  to  cross  another  railway  by  a 
briilgc'  gives  riglit  to  temporary  use 
of  the  company's  land,  but  not  to 
build  abutments. 


2.  Right  to  bridge  a  canal  gives  right  to 

build  a  temporary  .bridge. 

3.  And    if  erected   bvim  fidt    it  may  be 

used  for  other  purposes. 


§  100.  1.  Where  one  railway  act  gives  the  comjiany  jiowcr  to 
pass  another  railway,  by  means  of  a  bridge,  provided  the  width 
between  the  abutments  of  the  bridge  is  not  less  tlian  twenty-six 
feet,  and  at  the  points  where  the  bi'idge  is  to  be  built,  the  land  of 


^  King  V.  Commissioner,  12  East,  477. 

'  Ex  parte  Hawkins,  3  Railw.  Cas.  505,  and  note.  No  other  party  seems 
to  liave  had  a  counter  interest  in  this  case. 

^  Midland  Co\inties  Railway  Co.  r.  Oswin,  1  Col.  C.  C  71,  SO;  s.  c.  3 
Railw.  Cas.  407;  Danforth  v.  Smith,  23  Vt.  217. 

"  King  V.  Witham  Navigation  Co.,  3  B.  cSc  Aid.  454. 

10  Rand  v.  Townshend,  2(3  Vt.  670. 

"  Rex  V.  Nottingham  Old  "Waterworks,  G  A.  &  E.  355. 

[♦3TGJ 


396  ENTRY    BEFORE   COMPENSATION    IS    ASSESSED.       [PART   III. 

the  second  company  is  forty-seven  feet  wide,  the  first  company 
have  no  right  to  build  the  abutments  of  their  bridge  upon  the 
land  of  the  second  company,  but  having  purchased  adjoining  land 
for  that  purpose,  they  have  a  right  at  law  to  the'  temporary  use 
of  the  land  of  the  second  company,  for  the  purpose  of  building, 
and  this  right  was  in  effect  secured  to  the  first  company  by  an 
injunction  out  of  chancery.^ 

2.  So,  too,  where  a  railway  company  had  permission  to  carry 
their  road  over  a  canal,  by  means  of  a  bridge  of  a  given  descrip- 
tion, it  was  held  that  they  might,  as  incident  to  the  right  of 
erecting  the  bridge,  make  a  temporary  bridge  over  the  canal, 
supported  partly  on  piles  driven  into  the  bed  of  the  canal,  to 
enable  them  to  transport  earth  across  the  canal  to  build  the 
necessary  embankment,  in  the  construction  of  the  permanent 
bridge.^ 

3.  And  such  temporary  bridge  having  been  erected  for  the  bona 
fide  purpose  of  building  the  permanent  bridge,  might  also  be 
used  for  other  purposes,  for  which  alone  it  could  not  have  been 
erected.^ 


^SECTION   IX. 

Reservations  to  Land-oivners  to  build  Private  Railway  across 
Public  Railway. 

§  101.  Where  the  special  act  of  a  railway  company  provided, 
that  nothing  in  the  act  contained  shall  prevent  any  owner  or 
occupier  of  any  ground  through  which  the  railway  may  pass  from 
carrying,  at  his  or  their  own  expense,  any  railway,  or  other  road, 
any  cut  or  canal  which  he  or  they  may  lawfully  make  in  their 
own  land,  across  the  said  main  railway,  within  the  lands  of  such 
owner  or  occupier,  it  was  held,  that  this  provision  was  not  con- 
fined to  the  owners  or  occupiers  of  such  land  at  the  time,  but 

^  Great  North  of  England,  Clarence,  &  Hartlepool  Junction  Railway  Co. 
V.  Clarence  Railway  Co.,  1  Col.  C.  C.  507. 

2  London  &  Birmingham  Railway  Co.  v.  Grand  Junction  Canal  Co.,  1 
Railw.  Cas.  224. 

8  Priestley  v.  Manchester  &  Leeds  Railway  Co.,  4  Y.  &  Col.  Ex.  63;  s.  c  2 
Railw.  Cas.  134. 
[*877] 


§  101<;.]  DISPOSITION   OF   SUPERFLUOUS   LANDS. 


397 


was  intended  to  apply  to  all  future  time,  so  long  as  such  i)rincipal 
railway  shall  continue,  and  extended  to  all  persons  owning  or  occu- 
pying lands  adjoining  the  railway,  upon  opposite  sides,  ■whenever 
the  title  w^as  acquired,  even  where  they  purchased  the  land  upon 
opposite  sides  at  different  times.^ 


SECTION  X. 


Disposition  of  Superfluous  Lands. 


1.  Under  English  statute  superfluous 
lands  vest  in  adjoining  owner  un- 
less disposed  of  in  ten  years. 


2.  Former  owner  not  excluded  ;  effect  of 
cottage  in  field. 


§  101  a.  1.  I>y  the  English  statute,  railways  are  required, 
where  they  have  acquired  more  lands  under  their  powers  than 
are  required  for  their  purposes,  to  sell  the  same  within  ten  years 
from  the  passing  of  the  act,  and  that  superlluous  lands,  then  re- 
maining unsold,  should  vest  in  the  owners  of  adjoining  lands,  in 
proportion  to  the  amount  of  their  lands  respectively  adjoining  the 
same.  That  time  was  by  a  subsequent  act  extended  five  years 
more.  It  has  been  held  that  the  act  embraced  lands  the  rever- 
sion of  which  had  been  bought  by  the  company  ;  and  also  that 
the  superfluous  land  was  to  be  divided  among  the  owners  of 
the  adjoining  property,  *  in  pro|)ortion  to  the  frontage  of  each; 
meaning  by  that  the  length  of  the  line  of  contact,  without  refer- 
ence to  the  extent  of  the  land  in  other  directions,  and  that  the 
later  act  did  not  defeat  titles  already  vested  under  the  former 
act.i 

2.  It  has  also  been  held  that  the  former  owner  of  the  lands 
from  which  they  were  severed,  is  entitled  to  share  in  the  same  un- 
der the  statute,  and  that  the  fact  that  a  cottage  stands  in  the  field, 
part  of  such  superfluous  lands,  will  not  bring  them  within  the  ex- 
ception of  lands  built  on  or  used  for  building  purposes.- 

1  ]Sronkland  Railway  Co.  v.  Dixon,  1  Bell  Ap.  Cas.  347:  s.  c.  3  Raihv. 
Cas.  273.  The  court  here  denied  an  interdict  against  such  owner  or  occu- 
pier prolonging  his  railway  for  the  benefit  of  any  persons  with  whom  he 
might  make  an  agreement  for  that  purpose. 

1  Moody  V.  Corbett,  Law  Rep.  1  Q.  B.  510. 

*  Cai-ingtoii  v.  Wycombe  Railway  Co.,  Law  Rep.  2  Eq.  825. 

[•378] 


898 


MODE   OP   ASSESSING   COMPENSATION.  [PART   III. 


*CHAPTER    XIV. 

MODE   OF   ASSESSING   COMPENSATION   UNDER  THE   ENGLISH   STATUTES. 

SECTION   I. 

Assessment  by  Justices  of  the  Peace. 


1.  Assessment  where  the  compensation 

claimed  does  not  exceed  .£50. 

2.  Procedure  in  enforcement  of  award. 


3.  Value  of  land  and  injury  accruing  from 
severance  to  be  considered. 


§  102.  1.  By  the  English  statute,  where  the  compensation 
claimed  shall  not  exceed  X50,  the  same  is  to  be  settled  by  two 
justices.  So,  also,  as  to  damages  claimed  for  lands  injuriously 
affected.  So,  too,  if  the  company  enter  upon  any  private  road  or 
■way.  And  justices  may  fix  the  compensation,  in  certain  cases, 
for  the  temporary  use  of  land ;  and  the  compensation  to  tenants 
for  a  year,  or  from  year  to  year.  They  may  apportion  the  rent, 
too,  where  the  whole  land  is  not  taken.  In  some  of  these  cases 
their  jurisdiction  extends  beyond  X50, 

2.  The  mode  of  enforcing  payment  of  money  awarded  by  such 
justices,  is  to  obtain  an  order,  which  may  be  enforced  by  distress, 
upon  the  goods  and  chattels  of  the  party  liable.  The  certiorari  is 
taken  away  in  such  cases,  but  an  order  of  such  justices  may  still 
be  brought  up,  to  be  quashed,  for  want  of  jurisdiction.^ 

3.  The  justices  are  to  take  into  consideration  the  value  of  the 
land,  and  any  injury  which  may   accrue  from  severance. 


SECTION  II. 

Assessment  hy  Surveyors. 

§  103.  The  assessment  of  compensation  by  surveyors,  under 
the  English  statutes,  is  merely  provisional  in  most  cases,  as  where 
the  party  is  out  of  the  kingdom,  or  cannot  be  found,  two  justices 


[*379] 


^  See  the  subject  discussed  infra,  §§  163-16.5. 


§  104.] 


ASSESSMENT    BY    ARBITRATORS. 


399 


•are  required  to  nominate  an  able  practical  surveyor,  who  i.s, 
under  certain  solemnities,  required  to  make  a  valuation  of  the 
land  taken  or  injuriously  ariectcd,  the  amount  of  which  the  com- 
pany arc  required  to  deposit  in  the  bank,  before  proceeding  with 
the  works.  And  if  such  party  be  dissatisfied  with  the  sum  thus 
deposited,  he  may,  before  applying  to  Chancery  for  the  money, 
require  the  question  to  be  submitted  to  arbitration,  as  in  other 
cases  of  disputed  compensation.  Surveyors  are  required  to  as- 
sess damages  for  severance  of  land,  the  same  as  justices  of  the 
peace.^  (a) 


SECTION  III. 


Assessment  hy  Arbitrators. 


1.  Assessment  by  arbitrators  in  cases  ex- 

ceeding jurisdiction   of  justices  of 
the  peace. 

2.  Proceedings  in  selection  of  arbitrators. 

3.  Notice   of  appointment.     What   suffi- 

cient. 

4.  Arbitrator's  power  limited  to  award  of 

pecuniary  compensation. 

5.  Where  land-owner  gives  no  notice  of 

claim,  comj)any  maj'  treat  it  as  case 
of  disputed  compensation. 

6.  Similar  rule  under  Massachusetts  stat- 


ute regarding   alteration  of    high- 
ways. 

7.  Under  that  statute  land-owners  may 

recover  without  waiting  for  select- 
men to  act. 

8.  Company  estopped  in  such  case  from 

denying  that  road  was  constructed 
by  its  servants. 

9.  Finality  of  award  silent  as  to  sever- 

ance damages. 

10.  Submission  not  revoked  by  death  of 

land-owner.     Damages  embraced. 

11.  Construction  of  general  award. 


§  104.  1.  By  the  English  statutes,  if  the  amount  of  compensa- 
tion claimed  exceed  the  jurisdiction  of  two  justices,  any  party 
claiming  compensation  may  compel  an  arbitration,  by  taking  the 
requisite  steps  in  due  time.  Unless  both  parties  concur  in  the 
same  arbitrator,  each  party,  upon  the  request  of  the  other,  is  re- 
quired to  name  one.  The  appointment  of  tlie  arbitrator  is  to  be 
under  the  hand  of  the  party,  and  delivered  to  the  arbitrator,  and 
is  to  be  deemed  a  submission  by  such  party.  Such  submission  is 
irrevocable,  even  by  the  death  of  the  party. 

I  Hodges  Railw.  250,  251,  252. 

(a)  Notice  of  intention  to  apply  for    property.     Grierson  v.  Chosliirc  Lines 
the  appointment  of  a  surveyor  does    Committee,  Law  Rep.  19  Eq.  83. 
not  amount  to  a  contract  to  take  the 

[•360] 


400  MODE   OF   ASSESSING    COMPENSATION.  [PART   III. 

2.  If  either  party  neglect,  for  fourteen  days  after  request  by 
the  otlicr  party,  to  name  an  arbitrator,  one  may  be  named  by 
the  other  party,  who  sliall  decide  tlie  controversy.  If  either  party 
name  an  arbitrator  who  is  incompetent,  the  other  party  must  retire 
from  the  arbitration,  or  he  will  be  bound  by  his  acquiescence.^ 
*  The  secretary  of  a  railway  company,  by  the  English  statutes, 
would  seem  to  have  power  to  bind  the  company,  by  signing  the 
submission,  whether  the  arbitration  is  compulsory  or  not.^ 

3.  It  was  held  that  the  appointment  of  an  arbitrator  or  referee 
implied  the  notification  of  such  appointment  to  the  other  party 
within  the  time  limited  in  the  submission,  or  the  doings  of  such 
referee  were  void.^  And  not  only  so,  but  the  notice  must  be  ex- 
j)licit.  It  is  not  sufficient  to  say,  "  Take  notice,  that  it  is  my  in- 
tention to  nominate  S.  M.,"  notwithstanding  it  was  added,  "  if  the 
company  fail  to  appoint,  I,  the  said  T.  B.,  will  appoint  S.  M.  to 
act  on  behalf  of  both  parties."  *  And  in  this  case  it  is  said,  it 
would  seem  that  the  appointment  by  the  claimant  of  an  arbitrator 
to  act  for  both  parties  is  not  valid,  unless  he  has  previously 
appointed  an  arbitrator,  on  his  part,  and  notified  such  appointment 
to  the  company.  There  should  be  two  separate  appointments, 
although  it  may  be  of  the  same  person,  it  is  here  suggested.'^ 

4.  The  arbitrator  has  no  power  beyond  the  awarding  of  a 
pecuniary  compensation  for  the  land  taken  by  the  company,  and 
cannot  direct  what  right  of  way  shall  remain  in  the  tenant  to  the 
portion  of  land  not  taken.  Nor  can  he  apportion  the  rent  to  the 
tenant.^ 

1  In  re  Eliott,  2  De  G.  &  S.  17. 

2  Collins  V.  South  Staffordshire  Railway  Co.,  7  Exch.  5;  s.  c.  21  Law  J.  Ex. 
247;  s.  c.  12  Eng.  L.  &  Eq.  565. 

8  Tew  V.  Harris,  11  Q.  B.  7. 

*  Bradley  i-.  London  &  Xorthwestern  Railway  Co.,  5  Exch.  769. 

^  But  where  both  parties  petition  for  a  jury  to  revise  the  damages,  one 
■warrant  is  sufficient.  David.son  ;;.  Boston  &  ]\Iaine  Railroad  Co.,  3  Cush.  91. 
And  if  two  warrants  are  issued,  the  sheriff  should  execute,  and  return  them 
as  one.  lb.  And  where  there  are  several  applications,  which  by  statute  are 
to  be  determined  by  one  jm-y,  the  proper  mode  is  to  issue  but  one  warrant  to 
the  sheriff;  but  if  several  warrants  issue  irregularly^,  and  the  officer  summon 
but  a  single  jury,  who  hear  and  determine  each  case,  their  verdicts  will  not 
be  set  aside  for  such  irregularity.  Wyman  v.  Lexington  &  West  Cambridge 
Railroad  Co.,  13  Met.  316. 

«  Ware  v.  Regent's  Canal  Co.,  9  Exch.  395;  8.  c.  25  Eng.  L.  &  Eq.  444. 
Xor  can  the  tenant  recover  damages  for  the  depreciation  of  the  use  of  premises 
[*381J 


§  104.]  ASSESSMENT   BY    ARniTRATORS.  401 

5.  If  the  land-owner  gives  no  notice  of  claim,  in  reply  to  the 
notice  to  treat,  the  company  may  treat  it  as  a  case  of  disputed 
compensation."  If  the  compensation  claimed  be  less  than  .£50,  it 
may  be  settled  by  two  justices.  But  if  more  than  X50  be  claimed, 
or  oil'cred,  and  the  claimant  desire  to  have  it  settled  by  aibitra- 
tion,  *  it  is  at  his  option,  and  he  must  give  notice  of  such  desire 
before  the  company  issue  their  warrant  to  tlie  sherifT  to  summon 
a  jury  to  assess  tlic  compensation,  which  they  may  do  in  ten  days 
after  giving  the  claimant  notice  that  they  shall  do  so,  unless  in  the 
mean  time  he  elect  to  have  the  matter  settled  by  arbiti-ation.^ 

6.  And  under  the  Massachusetts  statute  giving  railways  the 
right  to  alter  highways,  upon  giving  notice  to  the  selectmen  of  the 
towns  where  such  highways  are  situated,  and  conforming  to  their 
requirements  or  the  decision  of  the  county  commissioners,  in  re- 
gard to  the  alteration  of  the  highway,  it  was  held,  that  if  the 
selectmen  give  no  notice  to  the  company,  as  to  what  alterations 
they  require,  the  presumption  is  that  they  require  none,  but  leave 
the  whole  matter  to  the  company. 

7.  And  to  entitle  adjoining  land-owners  to  recover  damages  of 
the  railway  under  the  statute  of  Massachusetts,  it  is  not  necessary 
that  the  selectmen  should  have  acted  in  the  premises.  The  rem- 
edy in  such  case  is  not  by  an  action  against  the  town,  but  by  pro- 
ceedings under  the  statute  against  the  company.^ 

8.  In  such  case  the  company  arc  estoj)pcd  to  deny,  that  the 
construction  of  their  road,  as  in  fact  made,  was  done  by  their  ser- 
vants in  compliance  with  the  requirement  of  the  charter.®  And 
embankments  made  by  them  for  the  purpose  of  carrying  a  highway 
over  the  railway,  arc  to  be  regarded  as  a  part  of  the  railway.^ 

9.  By  a  submission  to  arbitration  it  was  provided  that  the  arbi- 
trator should  determine  what  sum  should  be  paid  for  the  purchase 
of  land,  and  what  "  other,  if  any,  sum  for  severance  damage,  ami 
the  arbitrator  after  reciting  "  the  submission,  and  that  he  liad 
considered  the  matters  so  referred  to  him,  awarded  a  certain  sum 

used  for  a  public  house,  during  the  pendency  of  the  proceedings  after  notice. 
Queen  v.  Vaughan  &  Metropolitan  District  Railway  Co.,  Law  Rep.  4  Q.  R. 
190. 

7  Statute  8  &  9  Vict.  c.  18,  §§  21,  22,  2-3,  38. 

^  Parker  v.  Boston  &  Maine  Railroad  Co.,  3  Cu.sh.  107. 

8  In  re  Swansea  Harbor  Trustees,  6  Jur.  n.  s.  979;  s.  c  mm.  Beaufort  i-. 
Swansea  Harbor  Trustees,  8  C.  B.  n.  s.  146. 

VOL.  I. -26  [*382] 


402  MODE   OP   ASSESSING   COMPENSATION.  [PART  III. 

to  be  paid  for  the  purchase  of  the  land,  without  saying  anything; 
about  severance  damage ;  it  was  held  that  the  award  was  final 
and  good,  —  that  the  arbitrator  by  his  silence  negatived  any  right 
to  compensation  on  account  of  severance  damage. 

10.  A  submission  to  arbitration  under  the  English  statute  for 
assessing  land  damages  is  not  revoked  by  the  death  of  the  land- 
owner.^^  It  was  here  considered  that  the  award  was  valid,  although 
*  not  made  within  the  statute  period  of  three  months ;  that  the 
arbitrator  may  employ  an  expert  and  consult  men  of  science,  if 
necessary ;  that  the  right  to  compensation  extends  to  any  land 
injured  by  the  severance  of  that  which  was  taken,  or  by  the  works 
which  the  company  is  authorized  to  construct,  and  may  include 
damages  likely  to  be  caused  to  the  tenants  of  the  land-owner. 
The  right  to  compensation  depends  on  cause  and  effect,  and  not 
on  "  proximity  or  distance." 

11.  The  award  of  a  gross  sum  for  damages  for  drainage  which 
lessened  a  water-power  upon  which  a  mill  had  been  erected,  was 
held  presumptively  to  apply  to  the  damage  to  the  mill,  and  not 
to  the  unemployed  water-power,  which  might  be  available  for  the 
proprietor  of  the  other  side  of  the  river.^^  (a) 

w  Caledonia  Railway  Co.  v.  Lockhart,  3  Macq.  Ap.  Cas.  808;  s.  c.  6  Jur. 
N.  8.  1311. 

11  St.  George  v.  Reddington,  10  Ir.  Ch.  176. 

(a)  Under  statute  8  Vict.  c.  18,  the  An  award,  like  the  finding  of  a  jury 

umpire  in  case  of  arbitration  has  an  in  like  case,  concludes  nothing  but 

additional  three  months  after  the  mat-  the  amount  of  damages.     The  claim- 

ter  devolves  upon  him,  in  which  to  ant's   right   to   compensation   is    left 

make  his  award.     Skerratt  v.  North  open.     In  re  Xewbold  &  Metropolitan 

Staffordshire  Railway  Co.,  2  Phil.  475.  Railway  Co.,  14  C.  B.  n.  s.  405. 
[*383] 


TART  lY. 

THE  LAW  OF  CONTRACTS  AS  APPLIED  TO  THE  CON- 
STRUCTION  OF   RAILWAYS   AND   TELEGRAPHS; 
TOLLS,  ETC. 


PART   lY. 

TriE  LAW  OF  CONTRACTS  AS  APPLIED  TO  THE  CON- 
STRUCTION  OF   RAILWAYS   AND   TELEGRAPHS; 
TOLLS,   ETC. 


♦CHAPTER    XV. 

CONSTRUCTION    OF   RAILWAYS. 


SECTION   I, 
lAne  of  Railway.  —  Right  of  Deviation. 


1,  2.  Manner  of  defining   the  route   in 
English  charters. 

3.  Plans  binding  only  for  the  purpose 

referred  to  in  the  act. 

4.  Contractor   bound  by   contract   not- 

withstanding deviation,  unless  he 
object. 

5.  Equity  will  not  enforce  contract  for 

crossing  on  level,  not  authorized 
by  act.     Against  public  security. 

6.  Right  to  construct  accessory  works. 

7.  8.  Company  may   take   lands   desig- 

nated, in  its  discretion. 
9.  Equity  cannot   enforce   contract  not 

incorporated  in  the  act. 
10   Right  of  deviation  lost  by  location. 

11.  Railway  between  two  towns,  extent 

of  grant. 

12.  Grant  of  right  to  take  land  for  rail- 

way includes    right    to   take    for 
accessories. 


13.  Route   designated   need   not   be  fol- 

lowed precisely. 

14.  Terminus,  being  the  boundary  of  a 

town,  is  not  extended  as  the  boun- 
dary extends. 

15.  Land-owner  accepting  compensation 

waives  informality. 
IG.  Powers  limited  in  time  expire  with 
limitation. 

17.  Construction  of  charter  as  to  extent 

of  route. 

18.  Map  may  be  made  to  yield  to  other 

grounds  of  construction. 

19.  Power   to  change  location  must   be 

exercised  before  construction. 

20.  Binding  force  of  plans  made  part  of 

charter. 

21.  Grant  terminating  at  town   liberally 

construed. 


§  105.  1;  The  English  railway  acts  are  granted  altogotlicr,  after 
full  surveys  of  the  route  and  with  reference  to  ddinite  plans  of 
the  engineers,  which,  when  referred  to  generally  in  the  act,  thus 
become  so  far  a  part  of  it  as  to  be  binding  upon  the  company,  to 
the  extent  of  determining  the  datum  line  and  the  line  of  railway 

[•384] 


406  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

measured  with  reference  to  that  datum  line,  and  the  level  of  the 
railway  with  reference  to  the  datum  line ;  but  not  the  surface- 
levels,  unless  expressly  so  provided  in  the  act.^ 

*  2.  The  question  in  this  last  case  was  in  regard  to  the  riglit 
to  intersect  an  approach,  leading  to  a  mansion-house,  at  a  dif- 
ferent *  level  from  that  laid  down  in  the  parliamentary  plans,  in 
which  it  appeared  as  a  cutting  of  fifteen  feet,  and  the  way  raised 

*  upon  a  bridge  two  feet.  The  owner  of  the  house,  it  seems,  had 
opposed  the  railway  being  carried  through  his  avenue,  but,  relying 
upon  the  representations  contained  in  the  plan  and  sections,  was 
induced  to  abstain  from  opposing  the  bill.  The  line  of  deviation 
is  marked  upon  the  plan,  and  is  by  the  act  limited  to  ten  yards 
in  passing  through  villages,  and  one  hundred  yards  in  the  open 
country. 

3.  In  this  case  it  was  decided,  that  the  plans  were  only  binding 
upon  the  company  to  the  extent  to  which  they  were  referred 
to  in  the  act,  and  that  it  made  no  difference  that  the  deposited 
plans  were  so  incorrect  as  altogether  to  mislead  the  owner  of  the 
lands,  in  reference  to  the  manner  in  which  his  property  would  be 
affected  by  the  railway  works.  The  plans  not  being  referred  to  in 
the  act,  or  only  referred  to,  as  in  the  present  case,  to  determine 

*  the  datum  line  with  reference  to  lateral  deviation,  could  not 
control  beyond  the  matter  of  lateral  deviation. 

1  Xorth  British  Railway  Co.  v.  Tod,  5  Bell  Ap.  Cas.  184;  s.  c.  4  Railw. 
Cas.  449.  This  M'as  an  appeal  from  the  judgment  of  the  Court  of  Sessions  in 
Scotland.  The  opinions  of  Lord  Chancellor  Lyndhurst,  and  of  Lord  Chief 
Justice  Campbell,  exhibit  the  rule  of  the  English  law  on  this  subject  very 
fully  and  very  ably. 

See  also  Beardraer  v.  London  &  Northwestern  Railway  Co.,  1  Hall  &  T. 
161;  s.  c.  5  Railw.  Cas.  728.  The  same  rule  obtains  in  this  country.  Boston 
&  Providence  Railroad  Co.  v.  Midland  Railroad  Co.,  1  Gray,  340;  Common- 
wealth V.  Fitchburg  Railroad  Co.,  8  Cush.  240.  It  seems  that  the  deviation 
of  five  feet,  which,  by  §  11,  Railway  Clauses  Act  of  1845,  is  allowed  in  re- 
gard to  levels,  is  to  be  reckoned  with  reference  to  the  level  of  the  datum 
line,  and  not  with  reference  to  the  surface-levels  delineated  on  the  plans. 
And  any  greater  deviation  in  regard  to  levels,  which  may  be  obtained,  under 
certain  conditions,  in  certain  emergencies,  is  subject  to  the  discretion  of  the 
railway  commissioners;  and  at  the  suit  of  land-owners  affected  by  such  devia- 
tion, beyond  the  limits  allowed  by  the  act,  the  Court  of  Chancery  will  restrain 
the  company  from  proceeding  until  it  obtains  the  judgment  of  such  commis- 
sioners.  Pearce  v.  "Wycombe  Railway  Co.,  1  Drewry,  244;  s.  c.  19  Eng.  L. 
&  Eq.  122. 

[*385-*388J 


§  105.]  LINE    OP   RAILWAY.  —  RIGHT   OF    DEVIATION.  407 

4.  This  subject  is  incidentally  connected  with  tlie  performance  of 
construction  contracts.  But  it  has  been  held,  where  the  company 
deviate  from  the  intended  line  of  tiie  road,  even  beyond  what  was 
permitted  by  their  act,  with  the  consent  of  the  land-owner,  and  tlie 
contractor  never  objected  to  the  deviation,  but  continued  to  receive 
certificates  of  estimates,  and  payments,  in  precisely  the  same  mode 
in  which  he  would  have  received  them  had  the  deviation  not  taken 
place,  that  it  did  not  affect  his  liability  upon  the  contract.^ 

5.  A  reference  in  the  special  act  to  the  deposited  plans,  for 
one  purpose,  does  not  make  them  binding  for  all  purposes.^  So, 
too,  where,  by  the  general  acts,  a  railway  company  has  power  to 
pass  highways  and  other  roads,  by  bridges  or  excavation,  in 
their  discretion,  but  their  special  act  gives  them  power  to  pass 
them  on  a  level,  this  will  not  compel  them  to  do  so  ;  they  may 
still  exercise  the  power  conferred  by  the  general  acts.  And  a 
special  agreement  with  land-owners,  that  they  will  pass  such  roads 
on  a  level,  being  a  contract  in  derogation  of  public  right,  inasmuch 
as  the  public  security  is  greatly  jeoparded  thereby,  will  not  be 
specifically  enforced  in  a  court  of  equity.* 

6.  The  extent  of  deviation  is  to  be  measured  from  the  line 
delineated  upon  the  plans  to  the  actual  medium  filum  of  the  rail- 
way as  constructed,  and  the  fact  of  the  embankments  extending 
beyond  that  distance  is  no  violation  of  the  right  of  deviation 
allowed  in  the  act.^  Where  a  tunnel  is  marked  upon  the  plans 
referred  to  in  the  act,  it  must  be  made  in  the  exact  position  in- 
dicated,* and  the  general  right  of  deviation  does  not  apply.^     But 

*  Ranger  v.  Great  Western  Railway  Co.,  5  II.  L.  Cas.  72;  s.  c.  27  Eng. 
L.  &  Eq.  35. 

8  Regina  v.  Caledonia  Railway  Co  ,  IG  Q.  R.  19;  s.  c.  3  Eng.  L.  &  Eq.  285. 
Where  there  is  a  power  given  for  deviation  in  the  construction,  which  would 
render  some  portion  of  the  delineated  surveys  impracticable,  it  must  be  taken, 
as  of  necessity,  that  the  legislature  intended  the  omission  of  such  particulars 
as  became  impracticable  in  a  given  contingency  allowed  by  the  .ict. 

*  Braynton  v.  London  &  Northwestern  Railway  Co.,  4  Railw.  Cas.  553. 
But  the  Lord  Chancellor,  on  appeal,  considered  that  the  agreement  extended 
only  to  the  land  to  be  purchased,  and  that  it  contained  nothing  intended  to 
limit  the  powers  given  to  the  company  by  the  general  acts. 

*  Payne  v.  Bristol  &  Exeter  Railway  Co..  2  Railw.  Cas.  75;  s.  c  6  M.  .^  W. 
320;  Armistead  v.  North  Staffordshire  Railway  Co.,  10  Q  B.  520;  8.  c.  4 
Eng.  L.  &  Eq.  216. 

*  Little  V.  Newport,  Abergavenny  &  Hereford  Railway  Co.,  12  C  B.  752; 
s.  c.  14  Eng.  L.  &  Eq.  309. 

[♦389] 


408  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

the  company  may  take  lands  within  the  line  of  deviation  for  a 
branch  railway."  Under  an  act  allowing  land  to  be  "  taken  when 
necessary  for  making  and  maintaining  the  said  railway  and  works," 
it  was  held  that  the  company  might  take  lands  for  forming  or  en- 
larging stations,  or  places  for  carriages  to  collect  and  wait  till 
trains  are  ready  to  start;  and  the  Lord  Chancellor  said,  in  one 
case,^  "  The  term  railway,  by  itself,  includes  all  works  authorized 
to  be  constructed ;  and  for  the  purpose  of  constructing  the  rail- 
way, the  company  are  authorized  to  construct  such  stations  and 
other  works  as  they  may  think  proper." 

7.  And  it  would  seem  that,  where  lands  are  designated  by  num- 
bers on  the  plans,  although  not  altogether  within  the  line  of  de- 
viation, they  may  be  taken  by  the  company  when  necessary  for 
stations.^ 

And  it  has  recently  been  decided  in  the  House  of  Lords,  that 
where  the  legislature  authorized  a  railway  company  to  take,  for 
the  purpose  of  their  undertaking,  any  lands  specially  described  in 
the  act,  it  constitutes  them  the  judges  as  to  whether  they  will  or 
will  not  take  those  lands,  provided  they  take  them  bona  fide,  with 
the  object  of  using  them  for  the  purposes  authorized  by  the  legis- 
lature, and  not  for  any  sinister  or  collateral  purpose.^^  And  after 
referring  the  question,  as  to  the  propriety  or  right  to  take  the  land, 
to  an  engineer,  who  decided  against  the  company  and  in  favor  of 
the  land-owner,  the  court  ultimately  held  that  neither  the  opinion 
of  the  engineer  nor  of  the  court  could  curtail  the  power  of  the 
company  in  respect  to  the  quantity  of  land  which  *  the  company, 
bona  fide  acting  under  its  statutory  powers,  sought  to  obtain. 

'  Sadd  r.  Maldon,  Witham,  &  Braintree  Railway  Co.,  6  Exch.  143. 

8  Cother  v.  Midland  Railway  Co.,  2  Phil.  469. 

9  Crawford  r.  Chester  &  Holyhead  Railway  Co.,  11  Jur.  917;  1  Shelf.  Railw. 
Bennet's  ed.  617.  But  the  deviation  is  not  authorized  for  the  purpose  of 
taking  materials  alone.     Bentinck  v.  Norfolk  Estuary,  32  Law  T.  29. 

10  Stockton  &  Darlington  Railway  Co.  v.  Brown,  9  H.  L.  Cas.  246;  s.  c  6 
Jur.  N.  s.  1168.  But  a  railway  cannot  take  the  fee  of  land  for  the  purpose  of 
.supplying  soil  to  build  an  embankment.  Eversfield  (;.  Midsussex  Railway  Co., 
1  Gif.  153;  s.  c.  affirmed  5  Jur.  n.  s.  776;  s.  c.  3  De  G.  &  J.  286.  Nor 
can  land  be  taken  within  the  range  of  the  powers  conceded  by  the  act,  except 
for  the  exclusive  purpose  of  the  works  named  in  the  act,  and  if  any  subsidiary 
object  is  embraced  in  the  purpose  of  taking,  as,  to  give  a  more  convenient  road 
for  an  ordinary  land-owner,  who  was  to  pay  part  of  the  expense,  the  company 
will  be  restrained  by  injunction.  Dodd  v.  Salisbury  &  Yeovil  Railway  Co., 
1  Gif.  158;  5  Jur.  x.  s.  782. 
[*390] 


§  105.]  LINE   OP   RAILWAY.  —  RIGHT    OF    DEVIATION.  409 

8.  And  where,  by  a  special  act,  a  company  were  empowered 
to  erect  a  market  house  on  hind  described  in  the  deposited  plans, 
it  was  held,  that  as  the  land  of  the  plaintiff  was  described  in  the 
plans,  and  as  it  might  be  wanted,  the  company  were  authorized 
to  take  it,  and  that  the  company  were  to  be  regarded  as  the 
proper  judges  of  what  lands  were  necessary  for  the  works.^^ 

9.  The  trustees  of  a  turnpike-road  agreed  to  assent  to  a  bill  in 
parliament  for  the  formation  of  a  railway,  on  the  condition  that 
the  railway  should  pass  over  the  road  at  a  sufficient  elevation, 
and  the  road  be  not  lowered,  or  otherwise  i)rejudiced.  It  was 
held  that  this  modified  assent,  not  being  embodied  into  any 
agreement  between  the  trustees  and  company,  or  incorporated 
into  the  act,  afforded  no  equitable  ground  for  restraining  the 
company  from  the  exercise  of  all  their  powers  under  their  act; 
that  the  company  were  authorized  to  sink  the  original  surface 
of  a  turnpike-road  to  gain  the  requisite  elevation  for  the  arch  of 
a  bridge  to  carry  the  railway  over  the  road,  notwithstanding  the 
effect  might  be  to  render  the  road  liable  to  be  occasionally 
flooded.^2  Any  omission,  misstatement,  or  erroneous  description  in 
the  parliamentary  plans  referred  to  in  the  act,  may  be  corrected 
on  ap}>lication  to  two  justices,  in  the  mode  prescribed  in  the  act.^^ 

10.  By  statute,  in  some  of  the  states,  a  railway  company  who 
file  the  location  of  their  road  in  the  requisite  office,  are  allowed 
to  deviate,  to  any  extent  consistent  with  their  charter,  in  the 
course  of  construction.^^     But  it  has   been  held,  that  after  once 

"  Richards  v.  Scarboroujrh  Public  :\Iarket  Co.,  23  Eng.  L.  &  Eq.  343. 

'-  Ahlred  v.  North  Midhind  Railway  Co.,  1  Raihv.  Cas.  404. 

■3  Taylor  v.  Clemson,  2  Q.  B.  978 ;  s.  c.  3  Raihv.  Cas.  Go,  shows  the  mode 
of  procedure  in  such  cases. 

"  Boston  &  Providence  Railroad  Co.  v.  ^Midland  Railroad  Co.,  1  Gr.ay,  340. 
The  charter  gave  the  company  power  to  construct  the  road  in  five-mile  sec- 
tions, but  not  to  begin  the  work  within  a  prescribed  distance  of  one  terminus, 
nor  until  all  its  stock  was  taken  by  responsible  persons,  and  a  certain  sum 
paid  into  the  treasury.  It  was  lield,  that  this  requirement  of  subscription 
and  payment  of  stock  did  not  fix  a  limitation  on  the  company  in  building 
the  whole  road  not  in  sections.  The  courts,  in  interpreting  an  act  of  incorpo- 
ration, will  not  consider  what  took  place  while  it  was  passing  through  the 
legislature.  Pennyslvania  Bank  r.  Commonwealth,  19  Penn.  St.  144.  And 
in  Commonwealth  v.  Fitchburg  Railroad  Co.,  8  Cush.  240,  it  was  held,  that 
the  petitions  to  the  legislature  on  which  (lie  act  was  granted  were  inadmissible 
on  the  question  of  the  construction  of  the  act,  relative  to  tiie  course  and 
direction  of  the  line  of  the  road. 

[•390] 


410  CONSTRUCTION    OF   RAILWAYS.  [PART  IV. 

*  locating  their  road  their  power  to  re-locate,  and  for  that  pur- 
pose to  occupy  the  land  of  another  or  the  public  street,  ceases. ^^ 

11.  It  has  been  held,  that  a  grant  to  a  railway  company  to 
construct  their  road  between  two  towns  gave  them  implied 
authority  to  construct  a  branch  to  communicate  with  a  depot 
and  turn-table,  on  a  street  in  one  of  the  towns  (New  Orleans) 
off  the  direct  linc.^^ 

12.  The  grant  to  take  land  implies  power  to  take  buildings.^" 
And  a  grant  to  take  land  for  the  company's  road  implies  the  right 
to  take  land  for  all  the  necessary  works  of  the  company,  such  as 
depots,  car  and  engine  houses,  tanks,  repairing  shops,  houses  for 
switch  and  bridge  tenders,  and  coal  and  wood  yards,  but  not  for 
the  erection  of  houses  for  servants,  car  and  engine  factories,  coal- 
mines, &c.^^ 

15  Little  Miami  Railroad  Co.  v.  Naylor,  2  Ohio  St.  235.  And  an  authority 
to  change  the  location  of  the  line,  during  the  work,  does  not  imply  power 
to  change  it  after  the  road  is  complete.  Moorhead  v.  Little  Miami  Railroad 
Co.,  17  Ohio,  340.  The  same  view  is  maintained  by  Lord  Eldon,  in  Blake- 
more  V.  Glamorganshire  Canal  Co.,  1  Myl.  &  K.  154.  But  a  different  rule 
seems  to  be  intimated  in  Ex  parte  South  Carolina  Railroad  Co.,  2  Rich.  434, 
and  in  Mississippi  &  Tennessee  Railroad  Co.  u.  Devaney,  42  Miss.  555.  But 
see  Canal  Co.  v.  Blakeraore,  1  CI.  &  F.  262;  State  v.  Xorwalk  &  Danbury 
Turnpike  Co.,  10  Conn.  157;  Turnpike  Co.  v.  Ilosmer,  12  Conn.  364;  Louis- 
ville &  Nashville  Branch  Turnpike  Co.  v.  Nashville  &  Kentucky  Turnpike 
Co.,  2  Swan,  282,  where  the  proposition  of  the  text  is  maintained.  But  in 
South  Carolina  Railroad  Co.  v.  Blake,  9  Rich.  229,  it  is  held,  that  a  railway 
company  has  the  same  power  to  acquire  land,  either  by  grant  or  by  compul- 
sory proceedings,  for  the  purpose  of  varying,  altering,  and  repairing  its  road, 
as  for  the  original  purpose  of  locating  and  constructing  it;  but  that  the  com- 
pany is  not  the  final  judge  of  the  exigency  for  taking  the  land.  The  petition 
of  the  company  for  taking  the  land  should  allege  in  detail  the  necessity  for 
taking  it,  and  the  land-owner  may  traverse  these  allegations,  and  in  that  case 
this  is  tried  as  a  preliminary  question.     Infra,  §  123  a. 

1^  Knight  V.  Carrolton  Railroad  Co.,  9  La.  An.  284;  New  Orleans  & 
Carrolton  Railroad  Co.  v.  New  Orleans  Second  Municipality,  1  La.  An.  128. 
But  where  by  the  charter  of  a  railway  the  company  was  authorized  to  con- 
struct its  road  "  from  Charleston  "  to  certain  other  points,  it  was  held  that 
this  gave  it  no  authority  to  enter  the  city,  but  that  the  boundary  of  the  city 
was  the  terminus  a  quo.     Northeast  Railroad  Co.  v.  Payne,  8  Rich.  177. 

"  Brocket  v.  Ohio  &  Pennsylvania  Railroad  Co.,  14  Penn.  St.  241. 

18  vState  V.  Mansfield  Commissioners,  3  Zab.  510;  Vermont  Central  Rail- 
road Co.  V.  Burlington,  28  Vt.  193;  Nashville  &  Chattanooga  Railroad  Co.  v. 
Cowardin,  11  Humph.  348.  The  company  may  also  take  land  on  which  to 
construct  highways  substituted  in  the  place  of  those  put  to  the  use  of  the  rail- 

[*;39l] 


§105.]  LINE   OF   RAILWAY.  —  RIGUT   OF   DEVIATIO.V.  411 

13.  And  a  diartor  allowing  tlic  conijiany  to  oxtoiid  their  lino  to 
*a  certain  point,  "tlicnco  running  through  Aeton,  Sudbury,  Stow, 
Marlborough,"  «fcc.,  does  not  oldigo  the  comjuiny  to  locate  their 
road  through  these  towns,  in  the  order  named  in  the  charter.  And 
a  location  of  the  road  from  Acton  through  .Stow  to  Sudbury,  and 
thence  through  Stow  again  to  Marlborough,  was  held  to  be  a  suili- 
cient  compliance  with  the  grant. ^^ 

14.  If  the  charter  of  a  railway  limit  the  line  of  construction  by 
the  boundai-ics  of  a  borough,  and  the  boundaries  of  such  borough 
are  subsequently  extended,  that  will  not  alter  the  right  of  the 
company  in  regard  to  the  location  of  their  road.-''  And  an  exclu- 
sive grant  for  a  railway  within  certain  limits,  defined  at  one  ter- 
minus by  a  city,  is  to  be  restrained  to  the  limits  of  the  city  at  the 
date  of  the  grant.^^ 

15.  A  party  whose  land  was  taken  by  a  railway  company  for  the 
purposes  of  their  road,  and  the  damages  assessed  and  deposited 
for,  and  accepted  by  him,  with  full  knowledge  of  all  the  j)roceed- 

way  in  its  construction.  And  the  company  is  not  prohibited  from  so  taking 
land  because  it  aheady  has  land  on  which  such  substituted  hipfhway  may  he 
built,  hut  which  it  designs  for  other  lawful  uses.  Lamb  v.  >«'orth  London 
Railway  Co.,  17  W.  K.  7-16;  s.  c.  Law  Rep.  4  Ch.  Ap.  oi^'i. 

^^  Commonwealth  v.  Fitchburg  Railroad  Co.,  8  Cush.  240.  See  also 
Brigham  v.  Agricultural  Branch  Railroad  Co.,  1  Allen,  31G.  It  seems  agreed 
that  slight  deviations  from  the  route  prescribed  in  the  charter  will  not  release 
the  stockholders  from  the  obligation  of  their  subscriptions,  but  that  any 
substantial  deviation  will.  The  precise  line  of  distinction  between  the  two 
classes  of  cases  must  be  left  to  the  construction  of  the  courts  in  each  particu- 
lar ca.se.  The  stockholders  may  enjoin  the  company  in  the  course  of  con- 
struction from  making  an  essential  deviation,  and  after  the  road  is  completed, 
the  company  may,  by  scire  facias,  be  called  to  account  for  not  building  on  the 
route  indicated  in  the  charter.  But  where  all  interested  acquiesce  in  the  route 
adopted,  until  tlie  road  is  completed,  it  will  require  a  very  clear  case  to  induce 
the  courts  to  interfere.  The  following  cases  boar  on  the  general  question: 
Ashtabula  &  New  Lisbon  Railroad  Co.  v.  Smith,  15  Ohio  St.  3'2S;  Champion 
V.  Memphis  &  Charleston  Railroad  Co.,  35  IMiss.  69li ;  Fry  v.  Lexingt<in  ^ 
Big  Sandy  Railroad  Co.,  2  Met.  Ky.  314;  Aurora  v.  West,  22  Ind.  88;  Smith 
V.  Allison,  23  Ind.  3GG;  Mississippi,  Ouachita,  &  Red  River  Railmatl  Co.  i'. 
Cross,  20  Ark.  413;  Witter  v.  Cross,  20  Ark.  403;  Illinois  C.rand  Trunk  Rail- 
road Co.  V.  Cook,  29  111.  237.  See  also  Kenosha.  Rockf.u-d,  &  Rwk  Island 
Railroad  Co.  v.  Marsh,  17  Wis.  13;  Morris  &  Essex  Railroad  Co.  r.  Central 
Railroad  Co.,  2  Vroora,  205. 

20  Commonwealth  v.  Erie  &  North  East  Railroad  Co..  27  Penn.  St.  339. 

"  Pontchartrain  Railroad  Co.  v.  Lafayette  &  Pontchartrain  Railroad  Co., 
10  La.  An.  741. 

[*392] 


412  CONSTRUCTION   OF   RAILWAYS.  [PART   IV. 

ings  and  of  any  defect  therein,  and  who  allowed  the  company  to 
occupy  the  land  and  make  improvements  thereon,  without  remon- 
strance, for  two  years,  and  who  then  brought  an  action  of  trespass 
against  the  company,  on  the  ground  that  their  proceedings  were 
irregular  and  void,  was  held  to  have  waived  all  right  to  object  to 
them  on  that  ground.^^ 

16;  And  where  the  company  by  charter  had  power  to  take  land 
*  for  engine  and  water  stations,  within  five  years  from  the  date  of 
their  grant,  it  was  held  they  could  not  exercise  such  powers  after 
the  expiration  of  the  time  limited,  although,  operating  their  line 
by  horse  power  during  that  time,  they  had  not  required  the  exer- 
cise of  such  powers  on  that  account.^'^ 

17.  Where  a  charter  was  for  a  railway,  "  to  commence  at  some 
convenient  point  in  the  city  of  Brooklyn,  and  to  terminate  at  New- 
town, Queen's  county,  —  to  be  located  in  King's  and  Queen's 
counties,  and  its  length  to  be  about  twenty-five  miles ; "  there 
being  both  a  town  and  village  of  the  name  of  Newtown,  and  the 
boundary  of  the  town  being  also  the  boundary  of  the  city  of 
Brooklyn,  it  was  held  that  the  natural  and  only  consistent  con- 
struction was,  to  regard  Newtown  as  the  village  of  that  name,  and 
thus  extend  the  railway  through  a  portion  of  both  counties 
named,  and  not  restrict  it  to  the  limits  of  the  city  of  Brooklyn.^^ 

18.  It  is  here  declared,  that  where  the  charter,  as  applied  to 
the  route  indicated,  defines  a  precise  line,  that  line  becomes  as 
binding  upon  the  company  as  if  it  formed  a  portion  of  the  charter 
itself ;  and  that  where  a  map  is  filed  in  conformity  with  the  char- 
ter, which  docs  not  embrace  the  entire  route  indicated  by  the 
charter  as  applied  to  the  subject-matter,  in  order  to  reconcile  the 
apparent  conflict,  the  map  may  be  regarded  as  intended  to  give 
only  a  portion  of  the  route ;  or,  in  case  of  irreconcilable  conflict, 
the  map  must  yield  to  the  express  provisions  of  the  charter.^* 
The  distinction  between  terms  indicating  the  route  of  a  railway 
and  terms  defining  its  termini,  is  considerably  discussed  in  a  case 
in  New  Jersey.^" 

19.  A  power  to  change  the  location  of  a  railway,  on  account  of 
the  difficulty  of  construction  and  other  causes,  may  be  exercised 

^'^  Hitchcock  V.  Danbury  &  Norwalk  Railroad  Co.,  25  Conn.  516. 

28  Plymouth  Railroad  Co.  v.  Colwell,  39  Penn.  St.  337. 

^  Mason  v.  Brooklyn  &  Newtown  Railroad  Co.,  35  Barb.  373. 

^  McFarland  c.  Orange  &  Newark  Horse-Car  Railroad  Co.,  2  Beas.  17. 

[*393] 


§  lOG.J  DISTANCE,  HOW  MEASURED.  41^> 

at  any  time  before  the  construction  is  finished  at  the  particular 
poiut.^*' 

20.  Tlie  lines  and  works  of  a  railway  arc  sufficiently  indicated 
by  black  lines  upon  the  plan,  and  dotted  lines  anjund  them  to 
mark  the  limits  of  deviation.^'  And  where  the  deposited  plans 
and  sections  specify  the  span  and  height  of  a  bridge  by  which  tlu; 
railway  is  to  be  carried  over  a  turnpike  road,  the  company  will 
*  not,  in  the  construction  of  the  bridge,  be  allowed  to  deviate 
from  the  plans  and  sections.^^ 

21.  Under  a  charter  which  fixes  the  terminus  of  a  railway  at  or 
near  a  certain  point,  a  large  discretion  is  conferred  upon  the  com- 
pany, in  locating  their  road,  which  will  not  be  controlled  by  the 
courts,  unless  for  very  clear  excess,  or  where  bad  faith  is  shown. 
And  where  a  company  is  empowered  to  extend  their  line  from  a 
point  at  or  near  its  present  terminus,  "  in  Fall  River,  in  a  south- 
erly direction  to  the  line  of  Rhode  Island,"  a  location  starting 
from  a  point  on  the  line  2,475  feet  from  the  terminus  was  held 
authorized.^ 


SECTION  II. 

Distance,  hoiv  measured. 


1.  Measurement  of  distance  is  affected 

by  subject-matter. 

2.  Contracts  to  build  railway,  by  rate  per 

mile. 
8.  General  rule  to  measure  by  straight  line. 


4.  Rule  the  same  in  measuring  turnpike- 
roads. 

6.  Rate  fixed  by  mile  means  full  mile; 
no  charge  for  fractions. 


§106.  1.  Questions  of  some  perplexity  sometimes  arise  in 
regard  to  the  mode  of  measuring  distance,  in  a  statute  or  con- 
tract. The  import  of  terms  defining  distance  will  be  sometimes 
controlled    by  the   context,  or   the    subject-matter,  ((j)      In    one 

26  Atkinson  t'.  Marietta  &  Cincinnati  Railroad  Co.,  15  Ohio  St.  21. 

27  Weld  ('.  London  &  Soutlnvestern  Railway  Co.,  \V2  Beav.  310;  s.  c.  1)  Jur. 
N.  8.  510. 

28  Attorney-General  v.  Tewksbury  &  Great  Malvern  Railroad  Co.,  1  De  G. 
J.  &  S.  423;  s.  c.  9  Jur.  N.  s.  951. 

20  Fall  River  Iron  Works  v.  Old  Colony  &  Fall  River  Railroad  Co.,  5  Allen, 
221. 

(a)  A  contract  to  grade  a  road  be  satisfied  by  grading  to  corporate 
between  two  places  specified,  will  not     limits,  but  only  by  gradino;  from  t«r- 

[•394] 


414  CONSTRUCTION    OP   RAILWAYS.  [PART   IV. 

case,^  where  the  assignor  of  the  lease  of  a  public-house  in  London 
covenanted  that  he  would  not  keep  a  public-house  within  half  a 
mile  from  the  premises  assigned,  it  was  held  that  the  distance 
should  be  computed  by  the  nearest  way  of  access. 

2.  And  contracts  to  be  paid  for  constructing  a  turnpike,  or  rail- 
way, a  given  price  by  the  mile,  would  ordinarily,  no  doubt,  re- 
quire an  admeasurement  upon  the  line  of  the  road.  It  was  held, 
in  a  late  case  in  Vermont,  that  in  such  cases  the  contractor  is  not 
entitled  to  compute  the  length  of  track,  and  thus  include  turnouts 
and  side-tracks.2  But  this  might  not  exclude  branch  lines  ex- 
tending any  considerable  distance  from  the  main  track. 

*  3.  But,  in  general,  the  English  courts  have  chosen  to  adhere 
to  the  rule  laid  down  by  Parke,  J.,  in  Leigh  v.  Hind,  that  distance 
is  to  be  measured  in  a  direct  line,  through  a  horizontal  plane. 
Thus,  in  settlement  cases,  where  the  pauper  laws  provide  that  no 
person  shall  retain  a  settlement  gained  by  possessing  an  estate  or 
interest  in  a  parish  for  a  longer  time  than  he  shall  inhabit  "  within 
ten  miles  thereof,"  it  was  held,  that  the  distance  was  to  be  meas- 
ured in  a  direct  line  from  the  residence  to  the  nearest  point  of  the 
parish.^  And  the  twenty  miles  within  which  the  parties  are 
required  to  reside,  in  certain  cases  affecting  the  jurisdiction  of 
the  county  courts,  by  the  recent  statute,^  are  to  be  computed  in  a 
direct  line,  without  reference  to  the  course  of  travel.^ 

4.  And  where  a  turnpike  act  provided,  that  no  toll-gate  should 
be  erected  nor  any  toll  taken,  within  three  miles  of  B.,  and  the 

1  Leigh  V.  Hind,  9  B.  &  C.  774.  But  Parke,  J.,  was  of  a  different  opinion, 
and  said:  "  I  .should  have  thought  that  the  proper  mode  of  measuring  the  dis- 
tance would  be  to  take  a  straight  line  from  house  to  house,  in  common  par- 
lance, as  the  crow  flies." 

2  Barker  v.  Troy  &  Rutland  Railroad  Co.,  27  Vt.  766. 
8  Regina  v.  Saffron-Walden  Railroad  Co.,  9  Q.  B.  76. 

*  Statute  9  &  10  Vict.  c.  95,  §  128. 

6  Stokes  V.  Grissell,  14  C.  B.  678 ;  s.  c.  25  Eng.  L.  &  Eq.  336 ;  Lake  v. 
Butler,  5  Ellis  &  B.  92;  s.  c.  30  Eng.  L.  &  Eq.  264. 

minus  to  terminus  as  indicated  by  sta-  235.     It  seems  now  to  be  settled,  how- 

tion  grounds.  Western  Union  Railway  ever,  that  distance  is  to  be  measured 

Co.  V.  Smith,  75111.  496.  But  a  charter  in  the  Hne  delineated  on  the  map  or 

to  run  "  to  "  or  "  from  "  a  town  means  plat,  without  regard  to  inequalities  of 

no    particular  spot  within  its   limits,  surface  or  to  the  curvature  of  the  sur- 

People  V.  Louisville  &  Nashville  Rail-  face  of  the  earth.     Monflet  v.  Cole,  21 

road  Co.,  25  Am.  &  Eng.  Railw.  Cas.  W.  R.  175. 
[*395] 


§  107.] 


MODE   OF   CONSTRUCTION. 


4\ri 


road  did  not  extend  to  B.,  but  connoctod  with  anotlior  turnpike 
which  did,  and  also  a  public  road  made  since  the  act  was 
passed,  it  was  held,  that  the  three  miles  should  be  measured  "  in 
a  atraij^ht  line  on  a  horizontal  plane,  and  not  along  any  of  the 
roads."  *» 

f).  And  whore  the  rate  of  fare  is  fixed  by  tlie  milo,  and  no  pro- 
vision made  for  fractions  of  a  mile,  the  company  can  only  charge 
the  prescribed  tariff  for  the  full  mile  traversed.'^  But  the  English 
statute  ®  provides  specially  for  fractions  of  a  mile. 


♦SECTION   III. 


Mode  of  Construction  ;   Company  to  do  least  possible  Damage. 


1.  Rule  under  English  statute  does  not 
extend  to  form  of  road,  but  to  mode 
of  construction. 


2.  Special  provisions  of  act  not  controlled 

by  this  general  one. 

3.  Works  interfered  with,  to  be  restored, 

for  all  uses. 


§  107.  1.  It  has  been  held,  that  the  general  provision  of  the 
Railway  Clauses  Consolidation  Act,  that  in  the  exercise  of  their 
powers  the  company  shall  do  as  little  damage  as  possible,  and 
shall  make  satisfaction  to  all  parties  interested,  for  all  damages 
sustained  by  them,  does  not  extend  to  the  form  of  constructing 
the  railway.  It  does  not  apply  to  what  is  done,  but  to  the  manner 
of  doing. 

2.  Hence,  if  by  other  sections  of  the  statute  or  special  act  the 
company  are  recjuired  to  build  bridges  in  a  particular  form,  they 
may  still  do  so,  notwithstanding  it  may  cause  more  damage  to  the 
owners  of  land  than  to  build  them  in  some  other  form.^ 

3.  And  whore,  in  a  parliamentary  contract  between  the  pro- 
moters of  a  railway  and  the  proprietors  of  a  ropery,  it  was  8ti{>- 
ulated  that  the  railway  should  be  so  constructed,  that  when 
finished  the  level  of  the  ropery  should  not  be  altered,  nor  the 

«  Jewell  V.  Stead,  6  Ellis  &  B.  350;  s.  c.  3G  Eng.  L.  &  Eq.  114. 
'  Rice  r.  Dublin  &  Wicklow  Railway  Co.,  8  Ir.  Cora.  Law,  160. 
«.  Statute  21  &  22  Vict.  c.  75.  §  1 

^  Regina  v.  East  &  West  India  Docks  &  Birmingham  Junction  Railway, 
2  Ellis  &  B.  4G6. 

[*396] 


416 


CONSTRUCTION   OF   RAILWAYS. 


[part  IV. 


surface  of  the  ropery  in  the  least  diminished,  it  was  held  the 
company  were  bound  to  restore  the  surface,  so  as  to  be  available 
for  all  purposes  to  which  it  might  have  been  applied  before  the 
construction  of  the  railway,  and  not  for  the  purposes  of  the  ropery 
only.'-^ 


*SECTI0:N"  IV. 


Mode  of  crossing  Highways. 


1.  English  statutes   forbid   crossings  at 

grade. 

2.  Or  otherwise  provides  that  gates  be 

erected  and  tended. 

3.  And  if  near  a  station,  that  trains  shall 

not  run  faster  than  four  miles  an 
hour. 

4.  Company  cannot  alter  course  of  high- 

way. 

5.  Right  to  use  highway  gives  no  right 

to  appropriate  military  road. 

6.  Mandamus  does  not  lie  to  compel  par- 

ticular form  of  crossing  where  com- 
pany has  an  election. 

7.  Companj'    cannot    alter    highway   to 

avoid  building  bridge. 

8.  Extent  of  repair  of  bridge  over  railwa}'. 


9.  Permission  to  connect  branches  with 

main  line  not  revocable. 

10.  Grant  of  right  to  build  railways  across 

main  line  implies  right  to  use  them 
as  common  carriers. 

11.  Company  liable  for  dangerous  state 

of  highway  caused  by  works. 

12.  Right  to  lay  line  across  railway  car- 

ries riglit  to  lay  as  many  tracks  as 
are  convenient  for  the  business. 

13.  Damages  for  laying  highway  across 

railway. 

14.  Laying  highway   across   railway  at 

grade.     Company  not  estopped  by 
contract  with  former  owner  of  land. 

15.  Towns    not   at    liberty   to   interfere 

with  railway  structures. 


§  108.  1.  By  the  general  English  statutes  upon  the  subject  of 
railways  it  is  provided,  "  that  if  the  line  of  the  railway  pass  any 
turn))ike-road,  or  public  highway,  then  (except  when  otherwise 
provided  by  the  special  act)  either  such  road  shall  be  carried 
over  the  railway,  or  the  railway  shall  be  carried  over  such  road, 
by  means  of  a  bridge."  ^  (a) 

2  ITarby  v.  East  &  West  India  Docks  &  Birmingham  Junction  Railway, 
1  De  G.  M.  &  G.  290. 

^  Railway  Clauses  Consolidation  Act,  §  46.  Mandamus  requiring  the  com- 
pany to  carry  its  road  over  a  highway,  by  means  of  a  bridge,  when  that  was 
the  only  mode  in  which  it  could  be  done,  according  to  the  level  of  the  line  of 
the  railway  at  the  time,  was  held  bad.  Southeastern  Railway  Co.  t;.  Queen, 
17  Q.  B.  485. 

(«)  "WTiat  are  highways  within  Sea  View  Railway  Co.,  84  N.  Y.  308. 
the  meaning  of  the  New  York  stat-  The  -word  "track"  in  a  statute  au- 
utes,  and  what  railways.    Stranahan  v.    thorizing  a  crossing  held  to  mean  the 

[*397] 


§  108.]  MODE   OF    CROSSING    JUG II WAYS.  417 

2.  And  by  §  47  it  is  provided,  that  whenever  tlic  railway  does 
pass  any  such  road  upon  a  level,  the  company  shall  maintain 
gates  at  every  such  crossing,  either  across  tlie  highway  or  the 
railway,  in  the  discretion  of  the  railway  commissioiKMs,  and  em- 
ploy suitable  persons  to  tend  the  same,  who  are  recjuired  to  keep 
them  constantly  shut,  except  when  some  one  is  actually  passing 
the  highway,  or  railway,  as  the  case  may  l)e.- 

3.  And  where  a  railway  passes  a  highway  near  a  station,  on 
*  a  level,  the  trains  are  required  to  slacken  their  speed,  so  as 
not  to  })ass  the  same  at  any  greater  speed  than  four  miles  an 
liour."^ 

4.  The  right  to  raise  or  lower  highways,  in  the  construction  of 
a  railway,  docs  not  authorize  the  company  to  change  the  course 
of  the  highway,  even  with  the  consent  of  the  town  council,  and 
for  so  doing  the  company  were  held  liable  to  persons  who  had 
sustained  special  damage  thereby."* 

5.  The  right  to  use  "  highways  "  in  the  construction  of  plank 
roads,  contained  in  a  general  law,  does  not  extend  to  military 
roads  constructed  by  the  United  States,  while  the  state   was  a 

2  A  road  on  which  toll-gates  are  erected  and  tolls  taken  is  a  turnpike  road. 
Northam,  Bridge,  &  Roads  Co.  v.  London  &  Southampton  Railway  Co.,  G  M. 
&  \V.  -128;  1  Railw.  Cas.  G53;  Regina  r.  East  &  West  India  Docks  &  Birming- 
ham Junction  Railway  Co.,  2  Ellis  &  B.  4G6. 

'  Some  similar  provisions,  in  regard  to  the  construction  of  railways  in  this 
country,  seem  almost  indispensable  to  the  public  security. 

*  Hughes  I.'.  Providence  &  Worcester  Railway  Co.,  2  R.  I.  403.  It  is  the 
duty  of  a  railway  company  not  to  obstruct  public  roads,  where  they  intersect 
the  track,  either  by  stopping  a  train  or  otherwise;  and  the  company  must  take 
the  consequences  of  all  such  obstructions.  ^lurray  v.  South  Carolina  Rail- 
road Co.,  10  Rich. 227. 

entire    roadbed,    including    turnouts  way  which  it  has  crossed  in  safe  con- 

aud  switches.      Delaware  &   Hudson  dition  for  public  use;  and  where  the 

Canal  Co.  v.  Whitehall,  90  N.  Y.  21.  duty   is   inii)osed  by  charter   it   will 

The  duty  to  maintain  crossings  does  descend    upon    a   subsequent  owner. 

not  depend  on  tlie  legality  of  the  high-  Peoiile  r.   Chicago  &  Alton   Railroad 

way.     If  it  is  openly  and  notorio\isly  Co.,  (j7  111.  118.     Where  by  reason  of 

used  as  such,  and  as  such  recognized  by  increase  of  population  a  crossing  has 

the  company  by  the  ostensible  niaiute-  become  inadequate,  it  is  the  duty  of 

nance  of  a  public  crossing,  it  is  enough,  the  company  to  make  the  nece.ssary 

Kelly  I.'.  Southern  Minnesota  Railway  changes.     Cooke  r.  Boston  &  Lowell 

Co.,  28  Minn.  98.    In  general,  it  is  tlie  Railroad  Co.,  10  Am.  &  Eng.  Railw. 

duty  of  the  company  to  leave  a  high-  Cas.  328. 

VOL.  I. -27  [*398] 


418  CONSTRUCTION   OF   RAILWAYS.  [PART   IV. 

territory,^  but  the  legislature  may  grant  such  right,  by  the  charter 
of  the  company. 

6.  And  where  a  mandamus  ^  recited  tliat  the  railway,  which 
defendants  were  empowered  to  make,  crossed  a  certain  public 
highway,  not  on  a  level,  by  means  of  a  trench,  twenty  feet  deep 
and  sixty-five  feet  wide,  through  and  along  which  the  railway 
had  been  carried,  and  tlie  highway  thereby  was  cut  through  and 
rendered  wholly  impassable  for  ])assengers  and  carriages ;  and 
that  a  reasonable  time  had  elapsed  for  defendants  to  cause  the 
highway  to  be  carried  over  the  railway  by  means  of  a  bridge,  in 
the  manner  pointed  out  in  the  statute,"  and  commanded  defeud- 
ants  to  carry  the  highway  over  the  railway  by  means  of  a  bridge, 
in  conformity  with  the  statute,  particularly  specifying  the  mode: 
it  was  held,  tliat  it  not  being  otherwise  specially  provided  in  the 
company's  charter,  they  had,  by  the  general  act,  an  option  to  carry 
the  highway  over  the  railway,  or  the  railway  over  the  highway,  by 
a  bridge ;  and  that  the  option  was  not  determined  by  the  facts 
alleged  in  the  writ,  and  the  judgment  of  the  Exchequer,  *  award- 
ing the  writ,  was  accordingly  reversed  in  the  Queen's  Bench. 

7.  Where  the  charter  of  a  railway  authorized  them,  by  con- 
sent of  the  commissioners,  to  alter  a  highway  whenever  it  became 
necessary  in  order  to  build  the  railway  in  the  best  place,  and 
required  the  company  to  maintain  all  bridges  made  necessary  to 
carry  the  highway  over  the  railway :  it  was  held  that  the  com- 
pany had  no  power  to  alter  the  course  of  the  highway  in  order 
to  avoid  the  expense  of  building  a  bridge  ;  and  that  the  old  high- 
way was  still  subsisting,  notwithstanding  the  attempt  thus  to  lay 
out  a  substitute.^ 

8.  And  where  a  railway  company,  under  their  statutory  powers, 
in  England,  carry  a  highway  over  their  road  by  means  of  a  bridge, 
the  company  is  bound  to  keep  both  the  bridge  and  the  road  and 

6  Attorney-General  v.  Detroit  &  Erie  Plank- Road  Co.,  2  Mich.  138. 

^  Regina  v.  Southeastern  Railway  Co.,  15  Q.  B.  313;  s.  c.  6  Eng.  L.  &  Eq. 
214. 

7  Statute  8  &  9  Vict.  c.  20. 

8  Norwich  &  Worcester  Railroad  Co.  v.  Killingly,  25  Conn.  402.  Nor  has 
the  company  any  right  under  such  a  power  materially  and  essentially  to 
change  the  route  of  a  highway,  that  being  a  power  resting  solely  in  the  discre- 
tion of  the  municipal  authorities.  Warren  Railroad  Co.  v.  State,  5  Dutcher, 
393.  See  also  Veazie  v.  Penobscot  Railroad  Co.,  49  Me.  119;  Eaton  v.  Euro- 
pean &  North  American  Railroad  Co.,  59  Me.  520. 

[*390] 


§  108.]  MODE    OF    CROSSING    HIGHWAYS.  41*J 

all  tlic  approaches  thereto  in  repair,  and  such  repair  includi's 
not  only  the  structure  of  the  bridge  but  the  superstructure,  and 
everything  requisite  to  put  the  highway  in  (it  condition  for  safe 
use.^  (b) 

9.  Where  the  proprietors  of  land,  through  which  a  railway 
company  were  empowered  to  take  the  right  of  way,  had  the  right 
to  lay  branch  railways  upon  the  lands  adjoining,  and  to  connect 
them  at  proper  points  with  the  main  line,  so  as  not  to  endanger 
the  safety  of  persons  travelling  as  passengers  upon  the  railway, 
and  in  case  of  difference  in  regard  to  any  of  these  points,  the 
same  to  be  determined  hy  two  justices  of  the  j)eace ;  but  the 
company  were  not  required  to  admit  any  such  branch  to  connect 
*  with  their  line,  at  any  place  where  they  should  have  erected  any 
station  or  other  l)uilding  ;  it  was  held  that  the  consent  of  the 

9  North  Staffordshire  Railway  Co.  r.  Dale,  8  Ellis  &  B.  835.  But  where 
the  expense  of  keeping  a  bridge  in  repair  was  imposed  by  statute  on  several 
towns  and  a  railway  company,  jointly,  with  a  provision  that  the  municipal 
authorities  of  one  of  the  towns  should  have  the  care  and  superintendence  of 
the  same,  and  "employ  all  services  necessary  in  the  care  thereof,"  it  was  iield 
that  this  did  not  impose  any  special  obligation  on  that  particular  town,  in  re- 
gard to  the  repairs,  but  that  all  the  parties  still  remained  jointly  responsible  for 
the  performance  of  that  duty,  and  that  the  municipal  authorities  of  that  town 
were  thereby  made  the  agents  of  all  the  parties  thus  responsible;  and  that 
therefore  one  of  the  parties  could  not  maintain  an  action  against  the  town  for 
an  injury  through  the  joint  neglect  of  all  the  parties.  ^lalden  &  ^lelrose 
Railroad  Co.  v.  Charlestown,  8  Allen,  2io. 

{Ii)  So  in  this  country,  and  for  neg-  as  not  to  unnecessarily  impair  its  use- 
lect  of  this  duty  the  company  may  fulness  "  does  not  of  necessity  require 
be  indicted.  People  v.  New  York  a  bridge  the  full  width  of  the  high- 
Central  &  Hudson  River  Railroad  Co.,  way;  nor  where  the  railway  crosses 
74  N.  Y.  002.  And  see  People  c.  below  grade  is  the  bridge  necessarily 
Dutchess  &  Columbia  Railroad  Co.,  a  nuisance  because  it  is  of  less  grade 
58  N.  Y.  152;  Hayes  v.  New  York  than  the  highway.  People  v.  New 
Central  &  Hudson  River  Railroad  Co.,  York,  New  Haven,  &  Hartford  Rail- 
9  Hun,  G:);  People  r.  Same,  74  N.  Y.  road  Co.,  89  N.  Y.  2(iG.  A  statute 
302;  Farley  r.  Chicago,  Rock  Island,  requiring  the  construction  of  a  bridge 
&  Pacific  Railroad  Co.,  42  Iowa,  234;  in  a  specified  manner  is  not  nnconsti- 
Little  Miami  Railroad  Co.  r.  Greene  tutional  because  it  imposes  additional 
County  Commissioners,  31  Ohio  St.  burdens  on  the  company.  Such  bnr- 
338;  State  v.  Dayton  &  Southeastern  dens  may  be  imposed  for  the  public 
Railroad  Co.,  3G  Ohio  St.  434.  The  good.  People  v.  Boston  &  Albany 
duty  of  restoring  "  the  highway  as  Railroad  Co.,  70  N.  Y.  509. 
near  as  niav  be  to  its  former  state,  so 

[•400] 


420  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

company  to  unite  with  the  line  at  a  station  was  not  in  the  nature 
of  a  license  and  could  not  be  revoked.^'^ 

10.  And  where  the  owners  or  occupiers  of  adjoining  land  had 
the  riglit  to  build  railways,  and  to  cross  the  line  of  the  principal 
railway,  without  being  lialjle  to  toll  or  tonnage,  it  was  held  the 
owners  of  such  railways  might  use  them  as  common  carriers  of 
freight  and  passengers.^^ 

11.  It  lias  been  held  that  railway  companies  are  responsible  for 
injuries,  resulting  from  the  dangerous  state  of  highways,  caused 
by  their  own  works,  as  where  one  fell  into  a  culvert,  made  by  tlie 
company  at  a  highway  crossing,  to  prevent  the  accumulation  of 
the  water,  it  being  invisible  at  the  time  by  reason  of  snow.^  So 
also  in  all  cases  where  the  defect  in  the  highway  is  caused  by  the 
works  of  the  railway  company,  the  latter  will  be  responsible  for 
all  injuries  in  consequence,  although  the  party  might  also  obtain 
redress  of  the  town  bound  to  maintain  the  highway .^^ 

12.  A  railway  corporation  having  acquired  the  right  to  lay  its 
line  across  a  highway,  may  lay  and  maintain  as  many  tracks  as 
are  essential  to  the  convenient  transaction  of  its  business.^^ 

13.  A  railway  corporation  is  entitled  to  damages  for  land  taken 
by  laying  a  public  highway  across  its  line,  and  for  the  expense  of 
maintaining  signs  and  cattle  guards  at  the  crossing,  and  of  floor- 
ing the  same  and  keeping  it  in  repair ;  but  not  for  any  increased 
liability  to  accidents,  for  increased  expense  of  ringing  the  bell,  or 
for  its  liability  to  be  ordered  by  the  county  commissioners  to 
build  a  bridge  for  the  highway  over  the  track.  And  in  assessing 
damages,  in  such  a  case,  no  supposed  benefits  from  an  increase  of 
travel  on  the  railway  can  be  set  off  against  the  company .^^ 

14.  Under  the  revised  statutes  of  Massachusetts,  town  or  city 
authorities  have  no  power  to  lay  a  highway  across  a  railway,  at 
grade,  and  the  company  is  not  estopped  from  objecting  thereto  by 
any  agreement  with  the  former  owners  of  the  land  in  regard  to 
*  the  right  of  way  to  be  used  by  them  at  the  point  where  the  liigh- 

10  Bell  V.  :Midland  Railway  Co.,  3  De  G.  &  J.  G73. 
"  Hughes  V.  Chester  &  Holyhead  Railway  Co.,  8  Jur.  N.  s.  221. 
1-  Judson  V.  Xew  York  &  New  Haven  Railroad  Co.,  29  Conn.  434. 
13  Gillett  i;.  Western  Railroad  Co.,  8  Allen,  560. 

1*  Commonwealth  v.  Hartford  &  Xew  Haven  Railroad  Co.,  11  Gray,  379.      ^ 
15  Old  Colony  &  Fall  River  Railroad  Co.  v.  Plymouth  County,  14  Gray, 
155. 

[*401] 


I 


§  100.]  RIGHTS    OF   TELEGRAPH    COMPANIES.  421 

way  is  laid.^^  Nor  can  such  authorities,  under  the  pencral  stat- 
utes of  that  state,  lay  out  a  way  across  any  portion  of  the  hind, 
not  exceeding  five  rods  in  width,  whicli  has  been  taken  by  a  rail- 
way company  for  their  line,  unless  permission  has  been  granted 
liy  the  county  commissioners.^" 

15.  Where  a  railway  company  had  rightfully  carried  its  line 
through  a  compactly  built  village,  by  means  of  a  deejj  cut  run- 
ning under  the  principal  street,  which  had  to  be  carried  over  the 
cut  by  a  bridge,  and  had  built  a  station  supported  by  the  walls  of 
the  excavation ;  it  was  held  that  the  town  had  no  right  so  to  con- 
struct a  drain  as  to  throw  the  water  of  the  street  into  the  cut  and 
thereby  undermine  its  walls,  even  if  the  railway  works  at  that 
point  had  intercepted  the  natural  drainage,  and  there  was  no 
other  practicable  mode  of  remedying  the  evil,  except  at  greater, 
although  not  extravagant,  expense.'^  It  was  accordingly  held 
the  company  were  entitled  to  an  injunction  against  the  town, 
inhibitin<jr  the  construction  of  the  drain  in  that  mode. 


SECTION  V. 
Mights  of  Telegraph  Companies. 

1.  Right  to  "pass  directly  across  a  rail-  I  2.  E.xposition  of  the  terms  "under"  and 
way,"  does  not  justify  boring  under  "  across." 

it.  3.  Erecting  posts  in  liigliway  a  nuisance 

I  even  if  sufficient  space  remain. 

§  109.  1.  Where  a  telegraph  company  had  by  their  act  the 
power  to  pass  under  highways,  but  to  pass  "directly  but  not 
otherwise  across  any  railway  or  canal,"  and  a  railway  was  laid 
upon  the  level  of  a  highway,  in  accordance  with  their  special  act, 
it  was  held  that  the  telegraph  company  could  carry  their  works 
under  the  highway  at  the  point  where  it  was  intersected  by  the 
railway.^     But  the  telegraph  company,  attempting  to  pass  under 

^'  Boston  &  Maine  Railroad  Co.  v.  Lawrence,  2  Allen,  107. 
''  Commonwealth  v.  Haverhill,  7  Allen,  523. 
"  Danbury  &  Norwalk  Railroad  Co.  r.  Norwalk,  :57  Conn.  109. 
^  Southeastern  Railroad  Co.   r.  Kuropean  &  American  Telegraph  Co.,  9 
Exch.  36:?;  g.  c.  21  Eng.  L.  &  Eq.  513. 

[•401] 


422 


CONSTRUCTION    OF    RAILWAYS. 


[part   IV, 


the  railway  in  such  a  manner  as  to  disturb  their  works,  was  held 
liable  in  trespass.^  (a) 

2.  Parke,  B.,  in  giving  judgment,  said,  "  '  Across '  seems  there- 
fore different  from  '  under,'  and  the  power  to  carry  '  across '  does 
not  enable  them  to  go  under.  It  may  be  that  this  prohibition 
would  not  apply,  if  the  railway  were  carried  over  a  highway  at  a 
great  height,  for  then  the  highway  and  railway  might  be  consid- 
ered independent  of  each  other." 

3.  In  a  recent  English  case  ^  it  was  decided,  that  a  telegraph 
company,  which  erects  posts  in  any  portion  of  the  highway,  al- 
though not  in  the  travelled  portion  of  it,  whereby  the  way  is  ren- 
dered in  any  respect  less  commodious  to  the  public  than  before, 
is  *  guilty  of  committing  a  nuisance  at  common  law ;  and  the 
fact  that  the  jury  find  that  a  sufficient  space  for  the  public  use 
remained  unobstructed  will  not  afford  any  justification,  unless 
the  act  is  done  by  legislative  permission.  (6) 

2  Infra,  §§  130,  143,  164. 

3  Regina  v.  United  Kingdom  Electric  Telegraph  Co.,  9  Cox  C.  C.  174;  s.  c. 
3  F.  &  F.  73;  s.  c.  8  Jiir.  n.  s.  1153.  See  particularly  the  leading  opinion  of 
Crompton,  J.,  on  the  final  hearing  by  the  full  bench. 


(a)  A  gi-ant  from  a  railroad  com- 
pany to  a  telegraph  company  of  an 
exclusive  right  to  lines  along  its  right 
of  \Yay  is  invalid  as  in  restraint  of 
trade.  "Western  Union  Telegraph  Co. 
V.  American  Union  Telegraph  Co.,  65 
Ga.  160;  Western  Union  Telegraph  Co. 
V.  Burlington  &  Southwestern  Kail- 
way  Co.,  3  McCrary,  130.  And  a 
state  statute  giving  a  telegraph  com- 
pany the  exclusive  right  to  maintain 
lines  in  the  state  is  invalid  where 
Congress  has  assumed  to  regulate 
this  kind  of  commerce  between  the 
states.  Pensacola  Telegraph  Co.  v. 
Western  Union  Telegraph  Co.,  96 
U.  S.  1.  And  see  Pensacola  Tele- 
graph Co.  V.  Western  Union  Tele- 
graph Co.,  2  Woods,  643;  American 
Union  Telegraph  Co.  v.  Western 
Union  Telegraph  Co.,  67  Ala.  26. 
Under  the  New  York  statutes,  a  tele- 

[*402] 


graph  company  thereby  granted  power 
to  erect  its  lines  along  public  roads, 
streets,  and  highways,  has  no  right  to 
erect  its  line  on  the  right  of  way  of  a 
railway.  New  York  City  &  Northern 
Railroad  Co.  v.  Central  Union  Tele- 
graph Co.,  21  Hun,  261.  The  railway 
company  itself  may  erect  one.  West- 
ern Union  Telegi-aph  Co.  v.  Rich,  19 
Kan.  517;  Prather  v.  Western  Union 
Telegraph  Co.,  89  Ind.  501. 

{b)  When  a  company  lays  its  line 
over  a  highway  it  must  compensate 
the  owner  of  the  fee.  Board  of  Trade 
Telegraph  Co.  v.  Barnett,  107  111.  507. 
A  city  has  the  right  to  say  how  and 
on  what  conditions  a  telegraph  com- 
pany may  erect  its  lines  within  the 
city.  Mutual  Union  Telegraph  Co. 
V.  Chicago,  16  Fed.  Rep.  309.  And 
also,  unless  bound  by  contract,  to  take 
reasonable  measures  to  have  poles  and 


§  no.] 


DUTY    IN    REGARD    TO    SUBSTITUTED    WORKS. 


12;i 


*SECTIOX    VI. 


Duty  of  Company  in  reyard  to  substituted  Works. 


1.  Company  bound  to  repair  briJge  sub- 
stitute J  for  ford,  or  to  carry  highway 
over  railway. 


2.  Same  rule  has  been  applied  to  drains. 

substituted  for  otliers. 

3.  Extent    of    tliis   duty   ac    applied    to 

bridge  and  approaches. 


§  110.  1.  Where  a  public  company,  as  a  navigation  company, 
untler  tlic  powers  conferred  by  the  legislature,  destroyed  a  f<jrd 
*  and  substituted  a  bridge,  it  was  held,  that  they  were  liable  to 
keep  the  bridge  in  repair.^  So,  too,  where  such  company  cut 
through  a  highway,  rendering  a  bridge  necessary  to  carry  the 
highway  over  the  cut,  the  company  are  bound  to  keej)  such  bridge 
in  repair.2 

2.  So,  where  a  navigation  company  had  ])ower  to  use  a  public 
drain  by  substituting  another,  or  others,  it  was  held  that  the  com- 
pany were  bound  to  keep  in  repair  the  substituted  drains,  as  well 
as  to  make  them.^ 

3.  Under  the  English  statute,*  where  the  company  carries  the 
highway  by  means  of  a  bridge  over  the  railway,  it  is  bound  to 
maintain  the  bridge  and  all  the  approaches  thereto  in  repair; 
and  such  rei)air  includes  not  only  the  structure  of  the  bridge,  and 

1  Rex  V.  Kent,  13  East,  220;  Rex  v.  Lindsey,  11  East,  317. 

^  Rex  V.  Kerrison,  3  M.  &  S.  526.  This  duty  may  be  enforced  by  indict- 
ment. Regina  v.  Ely,  19  Law  J.  M.  C.  223.  And  the  same  obligation  rests 
on  the  assignees  of  the  company.  Pennsylvania  Railroad  Co.  r.  Duquesne 
Borough,  4G  Penn.  St.  223. 

8  Priestly  i-.  Foulds,  2  Railw.  Cas.  422;  2  Man.  &  G.  175. 

*  Statute  8  &  9  Vict.  c.  20. 

wires  already  erected  removed.     Mu-  running  over   the  streets,  if  they  are 

tual  Union  Telegraph  Co.  v.  Chicago,  high   enougli  to  admit  of  a  full  and 

11  Bissell,  539.     But,  under  the  stat-  safe   use   of    the  streets.      American 

utes  of  New  Jersey,  none  to  refuse  to  Union    Telegraph    Co.    v.    Harrison, 


allow  a  telegraph  company  to  erect  its 
line  at  all.  American  Union  Tele- 
graph Co.  V.  Harrison,  31  N.  J.  Eq. 
627.  Where  the  poles  are  erected  on 
private  property,  the  town  authori- 
ties  have  no   rifrht  to   remove  wires 


supra.  The  riglit  to  erect  ix)le3 
in  the  streets  does  not  include  also 
the  riglit  to  erect  broken  or  un- 
sightly poles.  Forsythe  r.  Baltimore 
&  Ohio  Telegraph  Co.,  12  Mo.  Ap. 
494. 

[•403,  *404] 


424  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

the  approaches,  but  the  metalling  of  the  road  on  both.^  But  this 
will  not  include  the  road  beyond  where  it  may  properly  be  re- 
garded as  forming  an  approach  to  the  bridge.^  And  the  same 
rule  obtains  here.  In  White  v.  Quincy,'^  it  was  held  that  the 
duty  of  the  company  as  to  repair  extended  to  the  whole  structure 
which  they  had  found  it  necessary  to  build  to  effect  their  purpose, 
even  where  it  extended  beyond  the  boundaries  of  the  location  of 
their  line. 


*SECTION  VII. 

Construction  of  Charter  in  regard  to  Nature  of  Works,  and  Mode 

of  Construction. 

§  111.  There  are  some  cases  in  regard  to  the  construction  of 
railway  works,  and  their  requisite  dimensions,  which  have  come 
under  the  consideration  of  the  courts,  and  where  the  decisions 
are  of  little  precedent  for  other  cases  not  altogether  analogous, 
and  on  that  account  not  deserving  an  extended  analysis,  but 
which  nevertheless  we  scarcely  feel  justified  in  wholly  omitting 
here.^ 

6  Newcastle-under-Lyne  &  Leek  Turnpike  Co.  r.  North  Staffordshire  Rail- 
way Co.,  5  H.  &  N.  160. 

^  Railway  Co.  v.  Kearney,  12  Ir.  Com.  Law,  224;  Fosberry  y.  Waterford 
&  Limerick  Railway  Co.,  13  Ir.  Com.  Law,  494;  London  &  North  Western 
Railway  Co.  v.  Skerton,  5  B.  &  S.  559. 

'  97  Mass.  430.  See  also  Titcomb  v.  Fitchburg  Railroad  Co.,  12  Allen, 
254. 

^  Attorney-General  v.  London  &  Southampton  Railway  Co.,  9  Sim.  78; 
s.  c.  1  Railw.  Cas.  302.  This  ca.se  is  in  regard  to  the  width  of  a  road  under 
a  railway  bridge.  Manchester  &  Leeds  Railway  Co.  v.  Reg.,  3  Q.  B.  528;  s.  c. 
3  Railw.  Cas.  G33.  'I'he  foot-paths  are  not  to  be  regarded  as  any  part  of  the 
requisite  width  of  the  bridge.  Regina  v.  Rigby,  14  Q.  B.  687;  s.  c.  6  Railw. 
Cas.  479;  Regina  r.  London  &  Birmingham  Railway  Co.,  1  Railw.  Cas.  317. 
This  is  a  case  in  regard  to  the  width  of  a  bridge  over  a  highway.  Regina  v. 
Birmingham  &  Gloucester  Railway  Co.,  2  Q.  B.  47;  2  Railw.  Cas.  694,  which 
is  a  case  in  regard  to  the  width  of  the  approaches  to  a  bridge  across  a  railway. 
Regina  v.  Eastern  Counties  Railway  Co.,  2  Q.  B.  347,  569;  s.  c.  3  Railw.  Ca.s. 
22,  as  to  the  right  to  lower  a  street,  in  order  to  obtain  the  requisite  height 
under  a  bridge,  notwithstanding  the  provisions  of  the  local  paving  act.  Regina 
V.  Sharpe,  3  Railw.  Cas.  33,  as  to  the  right  to  erect  a  bridge  at  a  different 
angle  from  the  former  road.  Where  a  special  act  required  a  company  to 
strengthen  a  bridge  described  in  the  act,  it  was  held  that  it  might,  never- 

^[*405] 


§  112.] 


TERMS   OP   CONTRACT. 


42o 


♦SECTION  VIII. 

Terms  of  Contract,  —  Money  Penalties.  - 
Performance. 


Excuse  for  Non- 


1.  Contracts  for  construction  may  assume 

forms  unusual  in  otiicr  contracts. 

2.  Quantity  and  quality  of  work  gener 

ally  referred  to  en^^ineer. 

3.  Money  penalties,  liquidated  damages. 

Full  performance  or  waiver. 

4.  Excuses    for    non-performance.      In- 

junction.    New  contract. 


5.  Penalty    not    incurred,    unless    upon 

strictest  construction. 
G,  7.  Contractor  not  entitled  to  anything 

for  part-performance. 
8.  Contract  for  additional  compensation 

must  be  strictly  performed. 


§  112.  1.  As  the  time  within  which  such  works  are  to  be  ac- 
complished is  often  limited  in  the  act,  and  as  the  manner  in  which 
the  work  is  done  is  of  the  greatest  possible  importance  to  the 
public  safety,  the  law  sanctions  contracts  for  such  undertakings, 
in  forms  not  only  unusual,  but  which  might  not  be  strictly  binding 
l)erliaps  in  the  case  of  ordinary  contracts.  For  instance,  it  is  not 
uncommon  for  the  contract  to  impose  penalties  upon  the  con- 
tractor for  slight  deviations  from  the  terms  of  agreement,  and 
to  secure  to  the  company  the  absolute  right  to  put  an  end  to  the 
contract,  whenever  they  or  their  engineer  are  dissatisfied  with  the 
mode  in  which  the  work  is  done,  or  the  progress  made  in  it.  (a) 

theless,  pull  down  the  old  bridge  and  build  a  new  one.  Wood  v.  North 
Staffordshire  Railway  Co.,  1  IMacu.  &  G.  278;  Rex  v.  Morris,  1  15.  &  Ad.  141, 
as  to  making  a  railway  on  a  turnpike  road.  A  turnpike  road,  having  power 
to  take  tolls  on  any  way  leading  out  of  its  road,  may  demand  tolls  of  passen- 
gers crossing  the  road  on  a  railway  granted  subsequently.  Rowe  c,  Shilson, 
4  li.  &  Ad.  7"2G.  AVhere  a  railway  company,  in  the  course  of  constructing  its 
road,  turned  a  stream,  as  it  had  power  to  do,  restoring  it  as  nearly  as  practi- 
cable to  its  former  state,  and  the  new  channel  was  properly  guarded,  so  far  as 
could  be  perceived,  at  the  time  of  turning  it,  it  was  held,  that  the  company 
was  not  obliged  thereafter  to  watch  the  action  of  the  water  and  take  precau- 
tions to  prevent  its  encroaching  on  the  adjoining  lands.  Norris  r.  Vermont 
Central  Railroad  Co.,  28  Vt.  99.  See  also  Filohburg  Railroad  Co.  v.  (Jrand 
Junction  Railroad  &  Depot  Co.,  4  Allen,  198,  where  a  question  in  regard  to 
apportioning  the  expense  of  a  work  done  by  the  plaintiff  for  tlic  nmtual 
benefit  of  the  parties,  in  comformity  with  statutory  provisions,  is  considered. 

(a)  As  to  construction  of  particu-  road  Co.  r.  Smith,  7-")  111.  490;  Oeiger 
lar  contracts,  see  Western  Union  Rail-     r.   Western   Marvland    Railroad  Co., 

[Mur,] 


42G  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

2.  And  it  is  almost  universal,  in  these  contracts  in  this  country, 
to  refer  the  quality  and  quantity  of  the  work  done,  and  the  con- 
sequent amount  of  payments  to  be  made  from  time  to  time, 
to  the  absolute  determination  of  an  engineer  employed  by  the 
company.^ 

3.  The  penalties  which  these  contracts  provide,  either  absolutely, 
*  or  in  the  discretion  of  the  company's  engineer,  for  delay  in  the 
work,  are  to  be  regarded,  commonly,  in  the  nature  of  liquidated 
damages.2     To  entitle  the  party  to  recover  for  work  done  upon 

^  Ranger  v.  Great  Western  Railway  Co.,  13  Sim.  368;  1  Railw.  Cas.  1; 
s.  c.  5  H.  L.  Cas.  72;  3  H.  L.  Cas.  298;  supra,  §  10.5.  And  where  the  con- 
tract refers  the  umpirage  to  the  company's  engineer,  by  name,  "  so  long  as  he 
shall  continue  the  company's  principal  engineer,"  the  reference  is  not  termi- 
nated by  the  amalgamation  of  the  company  with  another,  the  same  engineer 
being  continued  on  the  old  line,  but  not  as  the  principal  engineer  of  the  amal- 
gamated company.     In  re  Wansbeck  Railway  Co.,  Law  Rep.  1  C.  P.  269. 

2  Ranger  v.  Great  Western  Railway  Co.,  5  H.  L.  Cas.  72;  s.  c.  27  Eng. 
L.  &  Eq.  61. 

Where,  in  a  contract  between  the  original  contractors  for  building  a  rail- 
way and  the  sub-contractors,  it  was  provided,  that  the  work  should  be  subject 
to  the  supervision  and  control  of  the  engineer  of  the  company,  and  that  he 
should  make  monthly  estimates  of  "value,"  four-fifths  of  which  should  be 
paid  to  the  sub-contractors;  and  when  the  work  was  completed,  a  final  esti- 
mate; that  the  monthly  and  final  estimates  should  be  conclusive  between  the 
parties ;  that  if  the  contractor  should  not  truly  comply  with  his  part  of  the 
agreement,  or  in  case  it  should  appear  to  the  engineer  that  the  work  did  not 
progress  with  sufficient  speed,  the  other  party  should  have  power  to  annul  the 
contract,  and  that  the  unpaid  portion  of  the  work  was  to  be  forfeited  by  the 
sub-contractor,  —  it  was  held,  that  the  award  declaring  the  work  forfeited  was 
conclusive;  that  the  action  of  the  sub-contractor  on  the  contract  was  in  affirm- 
ance of  the  contract,  and  that  he  could  not  therefore  impeach  its  stipulations; 
that  the  term  "  value  "  was  to  be  distinguished  from  the  term  "  price,"  fixed 
for  the  different  classes  of  work,  and  that  the  engineer,  in  making  monthly 
estimates,  had  a  right  to  deduct  from  the  amount  of  work  done  sufficient  to 
bring  it  to  the  average  of  all  the  work  to  be  done,  and  was  not  bound  to  allow 
the  sub-contractor  the  price  stipulated  in  the  contract  for  work  of  this  descrip- 
tion; that  if  the  company  unjustly  withheld  funds  due  the  sub-contractor,  it 
could  not  fairly  take  advantage  of  the  forfeiture  declared  for  want  of  prosecu- 
tion of  the  work;  that  the  retention  of  a  per  cent,  in  case  of  forfeiture,  was 
intended  as  the  measure  of  reparation  for  the  failure  to  perform  and  not  as  a 
mere  penalty;  and  that  the  payment  after  forfeiture,  by  one  of  the  original 

41    Md.    4;    Savannah   &   Charleston  Rapids   &   Bay  City   Railroad  Co.  i'. 

Railroad  Co.  v.  Callahan,  56  Ga.  331;  Van   Dusen,   29  Mich.   431;  Snell  v. 

Fish  V.  Wolfe,   50  Iowa,  636;  Grand  Cottingham,  72  III.  IGl. 
[*407] 


§  112.J  PENALTIES. — EXCUSE   FOR   NON-PERFORMAN'CE.  427 

♦construction  contracts,  he  must  show,  cither  tliat  lie  has  jicr- 
formed  the  labor  according  to  the  contract,  or  that  the  other  party 
has  waived  strict  performance,  or  hindered  it.^  (l>) 

4.  But  the  party  may  excuse  full  performance  by  showing  that 
he  was  prevented  by  an  injunction  out  of  Chancery,  at  the  suit  of 
a  third  party.*  Or,  that  the  parties  had  entered  into  a  new  con- 
tract for  the  same  Avork,  upon  different  terras.^ 

5.  Where  the  work  was  suspended  at  the  request  of  the  com- 
pany, with  the  view  to  a  new  location,  the  company  agreeing  to 
pay  the  plaintiff  $750  by  way  of  damages,  if  the  work  should  not 
be  resumed  within  two  years,  and,  if  it  was,  the  plaintiff  to  pro- 
ceed with  the  work  at  the  prices  stipulated,  upon  those  sections 
not  altered  ;  the  route  being  altered  as  to  some  of  the  sections, 
upon  which  the  defendants  resumed  within  the  two  years,  em])l(>y- 
ing  others  to  do  the  work,  without  giving  notice  to  plaintiff ;  held 
that  the  plaintiff  could  not  recover  the  damages  agreed,  as  the 
work  was  resumed  within  the  two  years,  but  that  the  plaintiff  was 
entitled  to  damages  for  not  being  employed  to  do  the  work.° 

6.  Where,  by  the  terms  of  the  contract,  a  proportion  of  the  sum 
*  earned  is  to  be  paid  monthly,  and  the  remainder  reserved,  as 
security  for  the  fulfilment  of  the  contract,  it  was  held,  that  nothing 

contractors,  of  tl)e  hands  who  had  been  employed  on  the  works  by  the  sub- 
contractor, and  furnishing  money  to  carry  on  the  work,  was  not  a  waiver  of 
the  forfeiture,  especially  if  he  was  then  ignorant  that  there  had  been  a  forfeit- 
ure. Faunce  v.  Burke,  16  Penn.  St.  409.  In  English  contracts  it  is  common 
to  provide  for  the  use  of  the  contractor's  plant,  in  case  of  the  company's  put- 
ting an  end  to  the  contract,  and  for  the  sale  of  the  same,  and  crediting  the 
money  to  the  contractor.  Hut  this  construction  will  not  be  adopted  unless 
loss  or  expenses  have  been  occasioned,  for  which  the  contractor  is  responsible. 
Garrett  r.  Salisbury  &  Dorset  Junction  llaihvay  Co.,  Law  Rep.  2  Eq.  35S. 

'  Andrews  v.  Portland,  35  Me.  475.  And  it  was  held  here,  that  part  pay- 
ment, under  the  contract,  after  the  contractor  had  failed  in  strict  performance, 
was  no  waiver,  unless  the  failure  was  known  to  the  employer  at  the  time  of 
payment. 

^  Whitfield  V.  Zellnor,  24  Miss.  GG3. 

'  Howard  v.  Wilmington  &  Susquehanna  Railroad  Co.,  1  Gill,  311. 

'  Fowler  v.  Kennebec  &  Portland  Railroad  Co.,  31  Me.  197.  The  construc- 
tion here  adopted  seems  not  very  satisfactory. 

(h)  As  to  what  will  constitute  a  610.  As  to  prevention  through  fault 
waiver,  see  Phillips  &  Colby  Con-  of  the  other  party,  see  Beau  v.  Miller, 
struction  Co.   v.   Seymour,  91  U.  S.     69  Mo.  3S4. 

[*408, *400] 


428  CONSTRUCTION    OP   RAILWAYS.  [PAUT   IV. 

was  due  till  the  day  of  payment,  which  could  be  attached  by  trus- 
tee process." 

7.  And  where,  in  such  case,  the  company  have  the  power  to 
determine  the  contract,  and  the  reserved  fund  is  thereby  to  be 
forfeited,  and  the  company  do  so,  after  the  contractor  has  worked 
one  month  and  part  of  another,  and  has  received  the  proportion 
of  payment  for  the  first  month,  it  was  held  nothing  was  due  to 
the  contractor.^ 

8.  Where  a  railway  company,  after  making  a  contract  for  the 
construction  of  its  road,  became  embarrassed,  and  was  unable  to 
make  payments  to  the  contractor,  and  the  president,  wlio  was  a 
stockholder,  and  extensively  interested  in  the  success  of  the  enter- 
prise, made  an  additional  agreement  with  the  contractor  that  he 
would  give  him  his  notes  to  the  amount  of  810,000,  if  the  work 
were  completed  by  a  day  named,  it  was  held,  that  he  was  not 
liable  upon  the  agreement  unless  the  contractor  performed  his 
part  of  the  agreement  by  the  day  named.  The  notes  were,  by  the 
terms  of  the  agreement,  to  go  in  part-payment  of  what  was  due 
from  the  company,  and  the  new  agreement  was  not  to  affect  the 
subsisting  contract  with  the  company.^ 


SECTION  IX. 
Form  of  Execution.  —  Extra  Work.  —  Deviations. 

1.  Contract    need   be    in    no    particular  [  3.  Company  not  liable  for  extra  work 


form. 
2.  But  the  express  requirements  of  the 
charter  must  be  complied  witli. 


unless  it  was   done   on   the  terms 
specified  in  contract. 
Sed  qiicere,  if  the  company  has  had  the 
benefit  of  the  work. 


§  113.  1.  No  particular  form  of  contract  is  requisite  to  bind  the 
company,  unless  where  the  charter  expressly  requires  it.i  And 
although  there  seems  still  to  be  a  failing  effort  in  the  English 

"<  Williams  v.  Androscocjcfin  &  Kennebec  Railroad  Co.,  36  ^le.  201. 

8  Hennessey  v.  Farrell,  4  Cush.  267. 

»  Slater  v.  Emerson,  19  How.  224. 

1  Infra,  §§  130, 143,  164.  Corporations  cannot  enter  into  partnerships,  but 
two  or  more  corporations  may  become  jointly  bound  by  the  same  contract. 
Marine  Rank  r.  Ogden,  29  111.  248. 

[*409] 


§113.]  EXECUTION.  —  EXTRA    WORK.  — DEVIATION.  429 

♦  courts  to  maintain  the  necessity  of  the  contracts  of  corporations 
being  under  seal,^  it  is  certain  that  the  important  business  tran.s- 
actions  of  daily  occurrence,  in  both  that  country  and  here,  where 
no  such  formality  is  resorted  to  by  business  corporations,  in  mat- 
ters of  contract,  and  where  to  look  for  any  such  solemnity  would 
be  little  less  than  absurd,  almost  of  necessity  drive  the  courts  of 
England  to  disregard  the  old  rule  of  requiring  the  contracts  of 
corporations  to  1)C  made  under  the  corporate  seal.-'^ 

2.  Jjut  when  the  charter  of  the  corporation  requires  any  particu- 
lar form  of  authenticating  their  contracts,  it  cannot  be  dispensed 
with.  And  where,  by  the  charter  of  a  railway  company,  the  di- 
rectors were  authorized  to  use  the  common  seal,  and  all  contracts 
in  writing  relating  to  the  affairs  of  the  company,  and  signed  by 
any  three  of  the  directors,  were  to  be  binding  on  the  company ; 
and  the  company  entered  into  a  contract,  not  under  seal,  by  their 
secretary,  to  complete  certain  works,  and,  after  part-performance, 
the  contractor  was  dismissed  by  the  company,  it  was  held  he 
could  not  recover  the  value  of  the  work  done.^ 

2  Ludlow  V.  Charlton,  G  M.  &  W.  815.  But  see  Beverly  v.  Lincoln  Gas 
Light  &  Coke  Co.,  6  A.  &  E.'  829;  Dunstan  r.  Imperial  Gas  Light  Co.,  3  B.  & 
Ad.  125;  and  Gibson  v.  East  India  Co.,  5  Bing.  X.  C.  202,  per  Tindal,  C.  J., 
from  which  it  would  seem  that  the  English  courts  except  from  the  operation 
of  the  rule  only  such  transactions  of  business  corporations  as  could  not  reason- 
ably be  expected  to  be  done  under  seal.  But  see  Columbia  Bank  v.  Pattei'son, 
7  Cranch,  299,  and  2  Kent  Com.  289,  291,  and  notes,  where  it  is  said  the  old 
rule  is  condemned,  and  the  English  and  American  cases  are  cited  and  com- 
mented on.  Infra,  §  143;  United  States  Bank  v.  Dandridge,  12  Wheat.  Ci; 
Metropolis  Bank  v.  Giittschlick,  11  Pet.  19;  Norwich  &  Worcester  Railroad 
Co.  V.  Cahill,  18  Conn.  -181;  San  Antonio  v.  Lewis,  9  Texas,  G9.  See  aLso, 
AVeston  v.  Bennett,  12  Barb.  190;  Rathbone  v.  Tioga  Navigation  Co.,  2  Watts 
&  8.  74. 

^  Diggle  V.  London  &  Blackwall  Railway  Co.,  5  Exch.  412;  .i.  c.  G  Railw. 
Cas.  500.  It  is  said  here  that  a  contract,  to  be  binding  on  a  corporation  when 
not  under  seal,  must  be  one  of  necessity,  or  of  too  frequent  occurrence,  or  too 
trivial  to  be  made  under  seal.  In  Williams  r.  Chester  &  Holyhead  Railway 
Co.,  15  Jur.  828;  s.  c.  5  Eng.  L.  &  Eq.  497,  Mauti.n,  B  ,  says  persons  deal- 
ing with  corporations  should  bear  in  mind  their  peculiar  character,  and  insist 
on  having  all  contracts  under  seal  or  signeil  by  the  directors  according  to 
statute.  But  see  infra,  §  143,  and  cases  cited.  And  wlicre  the  assistant 
engineer  on  a  railway,  having  charge  of  the  construction  of  a  section  of  the 
road,  becoming  dissatisfied  with  the  contractor,  dismi,s.sed  him,  and  a.ssnmed 
the  work  himself,  agreeing  with  the  workmen  to  see  them  paid,  it  w.os  held 
that  his  subsequent  declarations  could  not  be  admitted,  to  charge  the  company 

[*410] 


430  CONSTRUCTION    OF   RAILWAYS.  [PAIIT   IV. 

*  3.  But  where  the  contract  contains  express  provisions  that  no 
allowance  shall  be  made  against  the  company  for  extra  work, 
unless  directed  in  writing  under  the  hand  of  the  engineer  or  some 
other  person  designated,  or  unless  some  other  requisite  formality 
be  complied  with,  the  party  who  performs  extra  work,  upon  the 
assurance  of  any  agent  of  the  company  that  it  will  be  allowed  by 
the  company,  without  the  requisite  formality,  must  look  to  the 
agent  for  compensation,  and  cannot  recover  of  the  company,  either 
at  law  or  in  equity.*  (a)  So,  under  the  English  General  Company 
Acts,  where  the  directors  are  authorized  to  contract  on  the  part 
of  the  company,  although  not  in  writing,  when  such  contracts 
would,  if  entered  into  by  private  persons,  be  binding  in  that  form, 

for  supplies  furnished  the  contractors,  on  the  ground  that  they  were  not  made 
in  the  course  of  the  performance  of  his  duty  as  agent  of  the  company.  Stiles 
V.  ^Vestern  Railroad  Co.,  8  Met.  44;  s.  c.  1  Am.  Railw.  Cas.  397.  See  also 
Underwood  v.  Hart,  23  Vt.  120,  where  the  subject  of  the  admissions  of  agents 
is  discussed,  and  the  cases  reviewed.  If  a  contract  under  seal  be  enlarged  by 
parol  and  subsequently  performed,  or  if  the  terms  of  the  contract  under  seal 
be  varied  by  parol,  the  proper  remedy  is  by  an  action  of  assumpsit.  Sherman 
V.  Vermont  Central  Railroad  Co.,  24  Vt.  347;  Barker  v.  Troy  &  Rutland  Rail- 
road Co.,  27  Vt.  774.  In  Childs  v.  Somerset  &  Kennebec  Railroad  Co.,  Law 
Rep.  5G1,  where  the  plaintiff,  by  special  contract,  agreed  to  build  certain 
bridges  and  depots  for  the  defendant  corporation,  for  which  he  was  to  be  paid 
partly  in  cash  and  partly  in  stock,  and  in  the  progress  of  the  enterprise  it  be- 
came necessary  to  do  much  extra  work,  and  furnish  materials  not  provided  for 
in  the  special  contract,  it  was  held  that  the  plaintiff  was  entitled  to  recover 
the  whole  value  of  the  extra  work  and  materials  thus  furnished  in  money,  on 
an  implied  assumpsit,  and  that  the  agreement  to  take  pay  in  shares  did  not 
extend  to  this  part  of  the  work. 

*  Kirk  V.  Bromley  Union  Guardians,  2  Phil.  640;  Thayer  v.  A'ermont 
Central  Railroad  Co.,  24  Vt.  440;  Herrick  v.  Vermont  Central  Railroad  Co., 
27  Vt.  C73 ;  s.  c.  1  Redf.  Am.  Railw.  Cas.  305;  Vanderwerker  v.  Vermont 
Central  Railroad  Co.,  27  Vt.  125,  130. 

(a)  A  verbal  order  will  not  suffice  changed  as  to  bring  a  portion  con- 
even  though  the  contract  also  provides  sisting  of  excavation  within  a  section 
that  the  engineer  may  direct  altera-  for  which  the  contractor  was  paid  only 
tions  and  additions.  White  v.  San  for  embankment,  it  was  held  that 
Rafael  &  San  Quentin  Railroad  Co.,  having  been  once  paid  for  his  work  he 
50  Cal.  417.  was   not  entitled   to    payment  on   a 

Where  a  contract  for  grading  per-  sectional  division   which    would  give 

mitted  a  change  of  line  or  grade,  the  him  more.     Fish  v.  Wolfe,  50  Iowa, 

contractor  to  be  paid  only  for  work  636. 
actually  done,   and  the   line  was   so 
[*411] 


§11-1-] 


REPUDIATION.  —  INEVITABLE   ACCIDENT. 


431 


three  directors  being  a  quorum  fur  that  purpose,  it  was  liehl  that 
tiie  mere  fact  that  extra  work  was  done  with  the  apjirobation  of 
tlie  company's  engineer,  the  special  contract  requiring  written 
directions  for  all  the  work,  had  no  tendency  to  prove  a  contract 
binding  the  com})any.^ 

*  4.  In  one  very  well  considered  case*^  upon  the  subject  of  extra 
work  not  authorized  in  the  manner  specified  in  the  contract,  it  is 
said  by  the  Vice-Chanccllor :  "  From  what  1  have  been  informed 
of  the  course  taken  at  law  in  these  cases,  it  is  this:  if  in  an 
action  by  a  contractor,  it  appears  that  the  company  have  the 
benefit  of  the  work  done  with  their  knowledge,  tlie  court  of  law 
does  not  allow  the  company  to  take  the  benefit  of  that  work  with- 
out paying  for  it,  although  in  covenant  (or  any  action  upon  the 
contract)  the  contractor  cannot  recover."  This  may  be  in  accord- 
ance with  the  general  rules  of  law  applicable  to  the  subject." 


SECTION    X. 

Repudiation  of  Contract.  —  Other  Party  may  sue  immediately.  — 
Inevitable  Accident. 


1.  Repudiation  by  one  party  excuses  per- 

formance by  tlie  otiier. 

2.  But  lie  may  stipulate  for  performance 

on  different  terms. 


.3.  President   cannot  bind   the  company 

for  additional  compensation. 
4.  Effect  of  inevitable  accident. 


§  114.  1.  Questions  often  arise  in  regard  to  the  right  of  a  party 
to  sue  for  damages  before  the  time  for  payment  arrives,  and  before 
he  has  fully  performed  on  his  part.  But  it  seems  now  to  be  well 
settled,  that  where  one  party  absolutely  repudiates  the  contract  on 

^  Iloniersham  v.  Wolverhampton  Waterworks  Co.,  G  Exch.  137;  s.  c.  G 
Railw.  Cas.  790.  Pollock,  C.  B.,  said:  "  The  company  is  not  bound  by  tho 
mere  order  of  the  engineer,  or  by  the  contract  with  one  director." 

«  Nixon  f.  Taff  Vale  Railway  Co.,  7  Hare,  13G.  But  see  infra,  §§  130, 
113. 

7  Dyer  r.  Jones,  8  Vt.  205;  Oilman  v.  Hall.  11  Vt.  511.  But,  in  many 
cases,  the  work  is  done  by  a  sub-contractor,  and  enures  to  the  benefit  of  the 
original  contractor,  as  in  Thayer  r.  Vermont  Central  Railroad  Co.,  24  Vt.  440, 
and  would  not  therefore  give  any  right  of  action  against  the  company,  al- 
thougli  in  one  sense  the  company  may  put  the  work  to  its  own  use,  and  so 
may  be  said  to  have  the  benefit  of  it  to  some  extent. 

[•412] 


432  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

his  part,  he  thereby  exonerates  the  other  from  further  perform- 
ance, and  exposes  himself  presently  to  an  action  for  damages.^ 

*2.  Where  the  contract  is  unconditionally  repudiated  by  one 
party,  before  it  is  fully  performed,  it  is  competent  for  the  other  to 
stipulate  for  its  performance,  upon  different  terms,  no  doubt. 
And  such  stipulation,  although  not  under  seal,  would  probably  be 
regarded  as  made  upon  a  valid  and  sufficient  consideration ;  and 
if  made  by  an  agent  of  the  former  party  to  the  contract,  but  who 
had  not  authority  to  bind  his  principal  to  such  contract,  it  would 
nevertheless  be  binding  upon  the  agent  and  other  party  contract- 
ing, and  would  not  be  required  to  be  in  writing,  as  it  would  be  an 
original  and  not  a  collateral  undertaking. 

3.  But  it  has  been  held,  that  after  a  railway  company  has  en- 
tered into  a  written  contract  for  the  performance  of  certain  work, 
the  promise  of  its  president  to  allow  additional  compensation  to 
the  contractors  for  the  same  work,  is  without  consideration,  and 
not  binding  upon  the  company .^ 

4.  A  very  singular  question  arose  in  an  English  case.^  The 
plaintiff  agreed  to  make  and  erect  on  premises,  under  the  control 
of  the  defendants,  certain  machinery,  and  the  latter  were  to  pro- 
vide all  necessary  brick  work,  &c.  Before  the  works  were  com- 
pleted the  buildings  in  which  the  work  was   to  be   done  were 

1  Cort  V.  Ambergate,  Nottingham,  Boston,  &  Eastern  Junction  Railroad 
Co.,  17  Q.  B.  127;  s.  c.  6  Eng.  L.  &  Eq.  230;  Blanche  t-.  Colburn,  8  Bing.  14; 
Hochster  v.  De  Latour,  2  Ellis  &  B.  678;  s.  c.  20  Eng.  L.  &  Eq.  157.  But  in 
an  action  to  recover  damages  on  such  contract,  the  jury  are  not  to  go  into  con- 
jectured profits  resulting  from  a  sub-contract  very  much  below  what  the  plain- 
tiff was  to  be  paid.  Only  the  difference  between  the  contract  price  and  the 
value  of  doing  the  work  at  the  time  of  the  breach  can  be  given.  Masterton  v. 
Brooklyn,  7  Hill,  61.  The  repudiation  of  a  contract  by  the  company,  followed 
by  seizure  of  the  works,  under  order  of  a  court,  will  be  held  a  waiver  of  its 
right  to  proceed  by  arbitration  under  the  same  contract  on  all  matters  involved 
in  the  question  of  the  legality  of  the  seizure.  Putney  ?>.  Cape  Town  Railway 
Co.,  Law  Rep.  1  Eq.  84;  Bunger  v.  Koop,  48  N.  Y.  225. 

2  Colcock  V.  Louisville  Railroad  Co.,  1  Strob.  329;  Nesbitt  v.  Louisville, 
Cincinnati,  &  Charleston  Railroad  Co.,  2  Speers,  697.  The  controversy  here 
was  in  regard  to  hard-pan  excavation.  It  was  held  that  as  the  plaintiff  con- 
tracted to  do  all  the  work  on  the  road,  and  to  construct  the  road  bed,  and  his 
contract  only  provided  for  earth  and  rock  excavation,  he  was  bound  to  accept 
his  estimates  under  the  contract,  and  that  especially,  after  having  done  so,  he 
could  not  claim  extra  compensation  for  excavating  hard-pan,  even  if  he  showed 
that,  by  usage,  "earth"  had  a  technical  meaning,  and  did  not  include  hard-pan. 

3  Appleby  v.  Meyers,  Law  Rep.  1  C.  P.  615;  s.  c  12  Jur.  n.  s.  500. 

[*413J 


§   11a. J  DECISIONS    OF    REFKUEK.S    AND    AUUITRATOUS.  433 

destroyed  by  fire.  It  was  held  the  ])laiiiti ffs  were  entitled  t<) 
recover  for  the  work  already  dune  by  tliem  before  tbe  liic,  and 
that  it  was  an  implied  term  of  the  contract  tliat  the  defendant 
should  provide  the  buildings  in  which  the  work  was  to  be  done, 
and  enable  the  plaintiffs  to  do  their  part  of  the  work,  and  there- 
fore that  the  defendant  was  not  relieved  by  the  occurrence  of  the 
fire;  as  a  party  who  contracts  to  do  a  thing  is  bound  to  carry  out 
his  engagement,  or  to  make  compensation,  notwithstanding  he  is 
prevented  by  inevitable  accident. 


* SECT I OX   XL 

Decisions  of  Referees  and  Arbitrators  in  regard  to   Construction 

Contracts. 

1.  Award  valid  if  substantially,  though   |  2.  Court  will  not  set  aside  award,  where 
not  technically  correct.  I  it  does  substantial  justice. 

§  115.  1.  The  general  rule  of  law,  in  regard  to  the  decisions 
of  arbitrators  and  referees,  by  which  they  have  been  held  binding 
upon  the  parties,  although  not  made  strictly  according  to  the  tech- 
nical rules  of  law,  if  understand ingly  made,  and  exempt  from 
fraud  or  partiality,  has  been  sometimes  applied  to  contracts  for 
construction  of  railway  works,  the  settlement  of  which  has  been 
determined  by  an  umpire,  (a)  As  where  the  contract  reserved 
the  right  to  the  company  to  alter  the  gradients  of  the  road,  and 
to  substitute  piling  for  embankment  without  extra  allowance. 
These  alterations  were  made,  and  thus  increased  the  expense  to 
the  contractors.  The  final  settlement  being  made  by  referees, 
to  whom  "  all  matters  in  dispute  with  the  contract  as  a  basis  of 
settlement,"  were  referred,  and  they  liaving  allowed  the  con- 
tractor compensation  for  this  increased  expense,  it  was  held  to  be 
within  the  power  conferred  upon  the  referees.^ 

1  Torter  i'.  Buckfield  Branch  Railroad  Co..  32  Me.  530.  In  this  case 
the  contract  provieled  for  payment  of  a  portion  of  the  price  of  the  work  in 
stock,  and  the  arbitrators  directed,  that  the  same  proportion  of  the  award 
should  be  paid  in  stock,  and  the  award  was  held  valid. 

(a)  A  stipulation  in  a  contract  by  void,  as  against  public  jxtlicy.     Kistler 

which  the  parties  name   an  umpire,  i\  Indianapolis  &  St.  Louis  Railroad 

and  agree  not  to  resort  to  the  courts  is  Co.,  SS  lud.  -100. 

VOL.  1.  — 28  [*-il-iJ 


434 


CONSTRUCTION    OF    RAILWAYS. 


[part  IV. 


2.  So,  too,  where  the  contract  specified  a  price  for  earth  exca- 
vation, and  another  for  rock  excavation,  but  notliing  was  said  of 
"  hard-pan,"  a  good  deal  of  which  occurred  in  the  course  of  the 
woi-k,  which  was  admitted  to  be  more  expensive  than  the  ordinary 
earth  excavation;  the  whole  subject  was  referred,  and  the  plain- 
tiff claimed  in  his  specification  thirty  cents  per  yard  for  cxcavat- 
in'g  hard-pan,  and  the  referees  allowed  him  fifty  cents  on  trial. 
The  defendants  objected  to  the  allowance,  being  more  than  the 
claim.  But  the  court  said,  where  the  testimony  was  received 
without  objection,  and  showed  the  party  entitled  to  recover  beyond 
his  specification,  the  court  will  not  set  aside  the  report,  or  grant 
a  *  new  trial,  where  it  is  apparent  the  party  has  not  recovered 
more  than  what  he  is  fairly  entitled  to.^ 


SECTION  XII. 


Decisions  of  Comjyany'' s  Enffineers. 


1.  Estimates  for  advances,  mere  approxi- 

mations, under  English  practice. 

2.  But    where  the  engineer's   estimates 

are  final,  can  only  be  set  aside  for 
partiality  or  mistake. 

3.  Contractor    bound   by  practical   con- 

struction of  the  contract. 

4.  Estimates   do   not    conclude    matters 

not  referred. 


5.  Contractor  bound  by  consent  to  accept 

pay  in  depreciated  orders. 

6.  Right  of  appeal  lost  by  acquiescence. 

7.  Engineer  cannot  delegate  his  author- 

ity under  reference. 

8.  Arbitrator  must  notify  parties,  and  act 

bona  fide. 


§  116.  1.  The  English  contracts  for  railway  construction  gen- 
erally contain  a  provision  for  referring  the  final  settlement  with 
the  contractor  to  an  indifferent  board  of  arbitrators,  or  one  selected 
by  the  parties  respectively,  with  the  umpirage  of  a  third  party  in 
case  of  disagreement.^     Under  such  contracts  the   provision  in 

2  Da  Bois  I'.  Delaware  &  Hudson  Canal  Co.,  12  AVend.  331. 

^  Ranger  v.  Great  Western  Railway  Co.,  5  H.  L.  Cas.  72 ;  s.  c.  27  Eng.  L. 
&  Eq.  35,  40.  So  where  in  a  canal  contract  it  is  provided,  that  the  engineer 
"shall  in  all  cases  determine  the  amount  or  quality  of  the  several  kinds  of 
work  "  to  be  done,  and  the  compensation  therefor,  and  that  either  party  may 
compel  an  indifferent  reference,  where  he  feels  aggrieved  by  the  decision  of 
the  engineer,  "to  investigate  and  determine  all  questions  that  may  arise  re- 
lating to  compensation  for  work  done  under  this  contract,"  it  was  held,  this 

[*415] 


§  110.]  DECISIONS   OF    COMPANY'S    ENGINEERS.  435 

regard  to  monthly  or  semi-monthly  estimates  is  such,  that  they  are 
understood  to  l^e  mere  aj)i)roxiniafions,  and  it  is  only  equivalent 
to  a  provision,  that  the  company  shall  advance,  from  time  to  time 
as  the  work  progresses,  for  a  stipulated  proportion  of  the  work, 
which  they  shall  by  their  engineer  adjudge  to  be  done.  All  that 
is  requisite  to  the  validity  of  such  estimates  is,  that  they  were 
made  bona  fide,  and  with  the  intention  of  acting  according  to  the 
exigency  of  the  contract.^ 

*  2.  But  where  the  contract  contains  provisions  referring  the 
estimate  of  the  quantity  and  quality  of  the  work  absolutely  to 
the  determination  of  the  company's  engineer,  or  any  particular 
party,  and  provides,  as  is  not  uncommon  in  this  country,  that  his 
decision  shall  be  final,  no  relief  from  his  determination  can  ordi- 
narily be  obtained,  even  in  a  court  of  equity,  unless  upon  the 
ground  of  partiality,  or  obvious  mistake,  which  latter  is  held  to 
apply  rather  to  the  quantity  than  the  quality  of  the  W(jrk,  tiiis 
being  purely  matter  of  judgment  and  discretion,  and  wliicli  was 
intended  to  be  concluded  by  the  opinion  of  the  arbitrator.-  (^a) 

umpirage  extended  only  to  the  final  account  of  the  engineer.  People  v.  Benton, 
7  Harb.  20!).  Under  a  contract  where  the  company  stipulated  to  pay  the  con- 
tractor ninety  per  cent  of  work  done,  according  to  the  engineer's  estimiite, 
and  the  engineer  had  the  right  to  declare  the  contract  abandoned,  and  in  that 
event  the  ten  per  cent  became  forfeited;  and  the  engineer  did  so  declare;  it 
was  held  that  this  did  not  absolve  the  company  from  the  payment  of  the  ninety 
per  cent  on  the  work  done,  before  the  contract  was  declared  abandoned. 
Kicker  v.  Fairbanks,  40  Me.  13. 

2  Ileriick  v.  Vermont  Central  Railroad  Co.,  '27  Vt.  G73;  Kidwell  r.  Ralti- 
niore  &  Ohio  Railroad  Co.,  11  Grat.  376;  Alton  Railroad  Co.  v.  Northcott,  in 
111.  40.  In  this  case  it  was  held  that  the  estimate  of  the  umpire  will  not  bind 
the  parties,  if  based  on  an  erroneous  view  of  the  contract.  So  a  court  of 
equity  may  correct  the  mistakes  of  the  engineer,  altliough  the  contr.-xct  stipu- 
lates that  his  decision  shall  be  final.  Mansfield  &  Sandusky  Railroad  Co.  r. 
Veeder,  17  Ohio,  385.  So,  too,  where  the  engineer  proves  to  be  a  stockholder 
in  the  company.  Milnor  v.  Georgia  Railway  &  Banking  Co.,  4  Ga.  385.  And 
in  Kems  v.  O'Reilley,  Leg.  Int.  Aug.  31,  1866,  it  was  decided  that  the  award 
of  an  engineer  between  contractor  and  snb-contiactor  is  final.  And  in  Lccoh 
V.  Caldwell,  Leg.  Int.  Nov.  10,  ISHG,  it  was  held,  that  where  the  sub-con- 
tractor covenanted  to  abide  the  decision  of  the  engineer  of  the  work  in  any 
dispute  arising  on  the  contract,  the  alleged  fraud  of  the  engineer  did  not  affect 
the  covenant. 

(a)  So  held  in  Grant  v.  Savannah  Co.,  11  Am.  &  Kng.  Railw.  Cas,  5Sf). 
Railroad  Co.,  51  Ga.  348.  And  see  See  also  Atlanta  &  Richmond  Air 
Loup  V.  Southern  California  Railroad     Line    Railroad  Co.    v.  Mangham,   49 

[•41G] 


436  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

But  in  an  English  case  ^  before  Yicc-Chancellor  Stuart,  where  in 
a  building  contract  the  corporation  reserved  the  power  to  deter- 
mine the  contract,  which  they  afterwards  exercised,  and  it  was 
stipulated  that  any  dispute  or  difference  which  might  arise  between 
the  contracting  parties  should  be  referred  to  and  settled  by  the 
engineer,  that  it  should  not  be  competent  for  either  party  to  except 
at  law  or  equity  to  his  determination,  and  that  without  the  certifi- 
cate of  the  engineer  no  money  should  be  paid  to  the  plaintiffs ;  it 
appearing  that  the  enghieer  had  never  refused  to  discharge  his 
duty  according  to  the  contract,  and  had  nothing  to  disqualify  him 
to  act,  and  was  ready  and  willing  to  proceed  and  determine  all 
matters  at  issue  between  the  parties :  it  was  held  that  there  was 
no  ground  for  the  equitable  interference  of  the  court. 

3.  If  the  contractor  acquiesce  in  a  particular  construction  of  his 
*  contract,  and  allow  his  estimates,  from  time  to  time,  to  be  made 
upon  such  basis,  he  will  be  bound  by  it  thereafter.* 

4.  Where  the  contract  specifies  a  price  for  rock  excavation,  and 
another  for  ordinary  earth  excavation,  and  in  the  course  of  the 
work  a  large  quantity  of  hard-pan  was  excavated,  for  whicli  no 

3  Scott  V.  Liverpool,  31  Law  T.  147.  This  subject  is  discussed  in  Roberts 
V.  Bury  Improvement  Commissioners,  Law  Rep.  4  C.  P.  755;  s.  c.  5  Law  Rep. 
5  C.  P.  310.  But  there  is  so  much  difference  of  opinion  among  the  judges 
that  no  new  principle  can  fairly  be  said  to  be  established.  See  also  Jones 
V.  St.  John's  College,  Law  Rep.  6  Q.  B.  115. 

*  Kidwell  V.  Baltimore  &  Ohio  Railroad  Co.,  11  Grat.  G76.  See  also  Com- 
monwealth V.  Clarkson,  3  Penn.  St.  277. 

Ga.    26G,    where   it  is   held  that  the  mine   all    questions    growing    out  of 

award  of  an  engineer  is  no  more  bind-  the  contract,   and  sole  judge  of  the 

ing  than  tliat  of  any  other  arbitrator,  quantity  of  labor  and  materials,  and 

And  see   also   Sharpe   r.    San   Paulo  a  certain   price    for    certain    work   is 

Railway  Co.,  Law  Rep.  8  Ch.  Ap.  597,  agreed  on,  he  has   no  power  to  fix 

where  the  contract  provided  that  the  compensation  after  a  different  meas- 

certificate  of  the  engineer  should   be  ure.     Starkey  v.  Do  Graff,  22  Minn, 

conclusive,    and  it   was    held  that  it  431.    If  the  engineer  neglects  or  refuses 

should  be  so,  there  being  no  fraud,  to  estimate  the  work,  recovery  may  be 

although  there  was  an  underestimate  had  of  the  correct  amount  otherwise 

of  the  work  in  the  engineer's  original  proved.    lb. ;  Kistler  v.  Indianapolis  & 

specifications,  on  the  basis  of  which  St.  Louis  Railroad  Co.,  88  Ind.  460. 

the  contract  was  taken,  and  although  And  so  if  by  neglect  or  mistake  he 

the  engineer  had  made  verbal  promises  underestimate  it.     Kistler  u.  Indian- 

of  a  greater  compensation.      Where  apolis    &    St.    Louis    Railroad    Co., 

the  engineer  is  made  umpire  to  deter-  supra. 
[*417] 


§  116.]  DECISIONS   OP    COMPANY'S    ENGINEERS.  437 

provision  was  made  in  the  contract,  and  the  other  party  conceded 
that  compensation  was  due,  beyond  tlie  price  fixed  in  the  contract 
for  ordinary  earth  excavation,  it  was  decided  that  the  contractor 
might  recover  upon  a  quantum  meruit  count.  And  where  the  con- 
tract also  provided  that  the  enrrinccr  should  finally  determine  all 
questions  necessary  to  the  final  adjustment  of  the  contruf-t,  this 
did  not  render  the  engineer's  estimate  conclusive,  as  to  the  sum  to 
he  paid  for  excavating  hard-pan."  These  points  are  both  decided, 
mainly  it  is  presumed,  upon  tlic  concession  of  the  defendant  that 
the  hard-pan  excavation  was  a  matter  altogether  outside  of  the 
contract.  Otherwise  it  might  seem  dilficult  to  maintain  their 
entire  consistency  with  other  decided  cascs.*^ 

5.  Where  the  contract  gives  the  engineer  power  to  stop  the 
work,  when  the  means  of  carrying  it  forward  fail,  and  he  informed 
the  contractor  it  could  not  proceed  unless  he  would  receive  his 
monthly  pay  in  orders,  which  were  at  a  discount,  and  the  con- 
tractor consented  to  receive  them,  he  is  not  entitled  to  recover  of 
the  company  the  amount  of  such  depreciation.'^ 

6.  And  altliough  the  contractor,  by  the  contract,  had  the  power 
to  refuse  to  abide  by  the  final  estimates  of  the  engineer,  yet  if  he 
submitted  to  him  his  charges  for  the  work  done,  and  made  no 
objection  to  his  making  up  the  final  estimate,  he  is  bound  thereby.'^ 

7.  Where  in  a  contract  for  work  upon  a  railway  it  was  stipu- 
lated that  the  work  should  be  measured  by  defendant's  engineer 
*  or  agent,  which  should  be  final  and  conclusive,  it  was  held  that 
such  person  could  not  delegate  his  authority,  but  that  it  was 
indispensable  that  he  should  himself  make  the  admeasurement. 
But  in  making  it,  it  is  not  necessary  that  he  should  give  previous 
notice  to  the  parties  to  enable  them  to  be  present.^ 

6  Du  Bois  V.  Delaware  &  Hudson  Canal  Co.,  12  Wend.  331;  s.  c.  15  Wend. 
87.  See  s.  c.  4  Wend.  285.  But  see  supra,  §  111;  Nesbitt  r.  Louisville,  Cin- 
cinnati, &  Charleston  Railroad  Co.,  2  Speers,  G97,  where  hard-pan  seems  to 
be  regarded  as  earth  excavation,  unless  there  is  some  special  provision  in  the 
contract /or  estimating  it  otherwise. 

^  Morgan  r.  Birnie,  9  Bing.  C72.  See  also  Sherman  v.  New  York,  1  Comst. 
316,  320. 

'  Kidwell  V.  Baltimore  &  Ohio  Railroad  Co.,  11  Grat.  G7G.  See  also  Com- 
monwealth V.  Clarkson,  3  Penn.  St.  277,  on  the  general  subject  of  the  conclu- 
siveness of  the  engineer's  estimate. 

8  Wilson  r.  York  &  Maryland  Line  Railroad  Co.,  11  Gill  &  J.  58.  Gross 
negligence  is  not  fraud,  but  evidence  to  be  considered  by  the  jury.     Id. 

[*418] 


438  CONSTRUCTION    OF   RAILWAYS.  [PAIIT   IV. 

8.  But  if  such  agent  is  to  make  an  estimate  of  certain  expenses 
to  be  allowed  the  i)laintiff,  and  he  proceeds  to  do  so,  in  the  absence 
of  plaintiff  and  without  notice,  the  plaintiff  will  not  be  bound  by 
the  estimate.  But  such  estimate  will  not  be  affected  by  the  inade- 
quacy of  the  amount,  or  that  the  usual  means  were  not  resorted 
to  for  ascertaining  facts,  if  the  umpire  act  hona  fide,  which  is  a 
fact  to  be  determined  by  the  jury.^ 


SECTION   XIII. 


Relief  in  Equity  from  Decisions  of  Company's  Engineers. 


1.  Contract  referring  work  to  engineer, 

engineer  to  be  satisfied. 

2.  Bill  for  relief  praying  tliat  plaintiff  be 

permitted  to  go  on,  &c. 

3.  Bill  sustained.     Amendment  alleging 

mistake  in  estimates. 

4.  Relief  as  to  sufficiency  of  payments 

had  only  in  equity. 

5.  Proof  of  fraud  must  be  very  clear. 

6.  Engineer  a  shareholder,  not  valid  ob- 

jection. 

7.  Decision  of  engineer  conclusive  as  to 

quality    of   work,  but    not   as   to 
quantity. 


8.  New    contract  condonation    of   old 

claims. 

9.  Account  ordered  after  company  had 

completed  work. 

10.  Money  penalties  cannot  be  relieved 

against,  unless  for  fraud. 

11.  Engineer's  estimates  not  conclusive, 

unless  so  agreed. 

12.  Contractor  entitled  to  full  compensa- 

tion for  work  accepted  by  supple- 
mental contract. 

13.  Direction  of  umpire  binding  on  con- 

tracting parties,  and  dispenses  with 
certificate  of  full  performance. 


§  117.  1.  In  consequence  of  the  peculiar  stringency  of  the 
terms  of  contracts  for  railway  construction,  applications  for  relief 
in  equity  have  not  been  unfrequent.     In  one  case,^  it  was  agreed 

1  Ranger  v.  Great  Western  Railway  Co.,  1  Railw.  Cas.  1;  s.  c.  13  Sim. 

368. 

Where,  by  the  contract,  the  work  was  to  be  done  to  the  satisfaction  of  the 
engineer,  and  suit  was  brought  without  obtaining  his  judgment,  it  was  held, 
that  it  could  not  be  maintained.  Parkes  v.  Great  Western  Railway  Co.,  3 
Railw.  Cas.  17.  This  case  is  also  found  in  3  Railw.  Cas.  298,  and  in  5  II.  L. 
Cas.  72,  and  in  27  Eng.  Law  &  Eq.  35.  It  came  before  the  House  of  Lords, 
on  appeal  for  final  determination  just  ten  years  after  the  decision  in  the  Vice- 
Chancellor's  court.  The  judgment  was  in  the  main  affirmed,  but  in  form  re- 
versed, and  sent  back  to  the  Court  of  Chancery,  for  an  account  according 
to  the  rights  established  by  the  final  decision.  The  case  deserves  careful 
attention. 

It  is  regarded  as  questionable,  how  far  a  contract,  vesting  the  property  of 

[*418] 


§  117.]       EQUITABLE   RELIEF    FROM    DECISIONS   OF    ENGINEERS.  430 

by  *thc  contract  that  every  fortiiit^lit  the  (•nf]!;iii(.'C'i-  of  tlic  coinj)aiiy 
sliould  ascertain  the  value   of  the  work  done,  accordinj^  to  its 

the  contractor  in  tlie  company  in  the  event  of  liis  insolvency  merely,  could  be 
maintained,  as  consistent  with  the  English  bankrupt  and  insolvent  laws. 
Kouch  V.  (ireat  Western  Railway  Co.,  1  Q.  B.  51;  8.  c.  2  llailw.  Cas.  50.'3. 
But  this  objection  may  be  obviated  by  the  company  stipulatiii'^  for  a  lieu 
merely,  —a  right  to  use  the  tools  and  materials  of  the  contractor  in  the  com- 
pletion of  the  work,  according  to  and  in  fulfilment  of  his  contract.  Hawthorn 
r.  Newcastle-upon-Tyne  Railway  Co.,  3  Q.  B.  734,  note  a:  s.  c.  2  Railw. 
Cas.  299.  It  is  said,  by  a  very  learned  equity  judge,  Lord  Rkdesdale,  in 
O'Connor  v.  Spaight,  1  Sch.  &  L.  309,  that  where  an  account  has  become  so 
complicated  that  a  court  of  law  would  be  incompetent  to  examine  it  at  Nisi 
Prius,  with  all  necessary  accuracy,  a  court  of  equity  will,  on  that  ground  alone, 
take  cognizance  of  the  case.  But  a  court  of  equity  will  not  ordinarily  inter- 
fere in  any  such  case,  and  especially  when  the  party  applying  has  been  guilty 
of  laches.  Northeastern  Railway  Co.  v.  Martin,  2  Phil.  Eng.  Ch.  758.  See 
also  Taff-Vale  Railway  Co.  v.  Nixon,  1  H.  L.  Cas.  Ill ;  Foley  i'.  Hill,  2  H.  L. 
Cas.  45,  4G.  See  also  Nixon  v.  Taff-Vale  Railway  Co.,  7  Hare,  PJG.  It  is  ques- 
tionable whether  any  such  distinct  ground  of  exclusive  equity  jurisdiction,  in 
matters  of  account,  as  the  complicated  nature  of  the  transactions,  can  be 
maintained,  but  there  is  little  doubt  that  this  would  be  regarded  as  an  impor- 
tant consideration  in  guiding  the  discretion  of  that  court,  in  assuming  such 
jurisdiction,  in  any  particular  case  pending  in  a  court  of  law.  But  sometimes 
where  the  contractor  claims  the  right  to  appropriate  payments,  made  generally, 
to  a  different  contract  from  that  on  which  the  company  desires  them  to  ap|>ly, 
it  is  necessary  to  draw  the  whole  into  a  court  of  equity.  Southeastern  Railway 
Co.  V.  Brogden,  14  Jur.  795;  s.  c.  3  Macn.  &  G.  8.  See  on  the  general  sub- 
ject, AVaring  v.  Manchester  &  Sheffield  &  Lincolnshire  Railway  Co.,  7  Hare,  482. 
An  important  case  on  a  contract  for  railway  construction,  finally  determined  in 
the  national  tribunal  of  last  re.sort,  on  elaborate  argument  and  great  considera- 
tion, and  involving  most  of  the  subjects  considered  in  Ranger  v.  Great  Western 
Railway  Co.,  may  be  regarded,  perhaps,  as  bearing  something  of  the  same  re- 
lation to  cases  in  this  country  on  that  subject  that  the  English  case  does  to 
cases  of  that  kind  in  the  English  courts.  This  is  the  case  of  Philadelphia. 
Wilmington,  &  Baltimore  Railroad  Co.  v.  Howard,  13  How.  307;  8.  c  1  Am. 
Raihv.  Cas.  70.  It  was  there  decided,  among  other  things,  that  in  such  con- 
tracts the  covenant  to  finish  the  work  by  a  certain  time  on  the  one  j>art,  and 
to  pay  monthly  on  the  other  part,  are  distinct  and  independent  covenants; 
that  the  right  of  the  company  to  annul  the  contract  at  any  time,  does  not  in- 
clude a  right  to  forfeit  the  earnings  of  the  other  party  for  work  done  prior  to 
the  annulment;  that  a  covenant  to  execute  the  work  according  t«i  a  schedido 
which  says  it  is  to  be  done  according  to  the  directions  of  the  engineer,  binds 
the  C()m[>any  to  pay  for  work  done  according  to  his  directions,  although  not 
strictly  in  conformity  with  a  profile  showing  the  original  proximate  estimates; 
that  when  the  contract  is  to  place  the  waste  earth  where  ordered  by  the  ensi- 
neer.  it  is  the  dutv  of  the  engineer  to  provide  a  convenient  place,  ami  if  lie 

[•410J 


440  CONSTRUCTION    OF   RAILWAYS.  [PART   IV, 

*  quality  and  relative  proportion  to  the  whole  work ;  the  con- 
tractor to  receive  eighty  per  centum,  the  remainder  being  reserved 

fails  to  do  so  the  other  party  is  entitled  to  damages;  that  where  the  contract 
authorizes  the  company  to  retain,  until  the  completion  of  the  contract,  fifteen 
per  cent  of  the  earnings  of  the  contractor,  by  way  of  indenmity  from  loss 
through  any  failure  of  the  contractor  to  perform,  it  is  not  to  be  regarded  as  a 
forfeiture  ;  that  where  the  contractor  is  delayed  in  the  progress  of  the  work 
by  an  injunction,  he  is  entitled  to  no  damages,  unless  the  jury  find  that  the 
company  did  not  use  reasonable  diligence  in  obtaining  a  dissolution  of  the  in- 
junction ;  that  if  a  railway  company,  having  the  power  of  annulling  a  contract 
for  construction,  "  when,  in  their  opinion,  it  is  not  in  due  progress  of  execu- 
tion," or  the  contractor  is  "  irregular  or  negligent,"  he  is  entitled  to  recover 
damages  for  any  loss  of  profit  he  may  have  sustained  through  an  oppressive 
use  of  that  power. 

In  Herrick  v.  Vermont  Central  Railroad  Co.,  27  Vt.  673;  s.  c  1  Redf.  Am. 
Railw.  Cas.  305,  it  was  held,  among  other  things,  that  a  stipulation  in  a  con- 
tract for  construction,  that  "  the  engineer  shall  be  the  sole  judge  of  the  quality 
and  quantity  of  the  work,  and  from  his  decision  there  shall  be  no  appeal,"  is 
binding  and  constitutes  the  engineer  an  arbitrator  or  umpire;  that  such  a 
stipulation  imposes  on  the  company  the  duty  of  employing  for  such  engineer 
a  competent,  upright,  and  trustworthy  person,  and  of  seeing  that  he  performs 
the  service  expected  of  him  at  a  proper  time  and  in  a  proper  manner;  that  the 
estimates  in  such  case  may  be  made  by  the  assistant  engineer;  that  where 
payment  for  the  work  depends  as  to  its  amount  on  the  engineer's  estimates, 
and  the  employing  party  performs  its  duty  in  reference  to  the  employment  of 
a  suitable  engineer,  the  obligation  to  pay  will  not  arise  until  such  estimates 
are  made ;  but  that  if,  through  the  neglect  or  fault  of  the  engineer,  or  of  the 
party  who  employs  him,  no  estimates  are  made,  the  other  party  can  probably 
recover  at  law  for  the  work  performed,  without  any  engineer's  estimate  of  it; 
that  a  contract  providing  for  monthly  estimates  of  the  contractor's  work  ac- 
cording to  which  he  is  to  be  paid,  imports  an  accurate  and  final,  not  an  approx- 
imate estimate  for  each  month;  and  that  a  court  of  equity  has  jurisdiction  of 
a  claim  to  be  paid  for  a  larger  amount  of  work  done  under  such  a  contract 
than  was  estimated  by  the  engineer,  where  the  underestimate  was  occasioned 
either  by  mistake  or  fraud. 

In  a  contract  for  railway  construction,  where  the  parties  by  a  subsequent 
contract  stipulated  for  the  completing  of  the  work  by  a  day  named,  for  addi- 
tional compensation,  and  that  the  contractor  should  pay  a  certain  sum  for  each 
day's  delay  beyond  the  time  specified,  the  company  to  furnish  certain  mate- 
rials to  complete  the  same  by  the  day  specified,  the  work  was  not  finished  for 
twenty- four  days  after  the  time  specified,  and  the  materials  were  not  furnished 
to  complete  it  sooner,  the  court  held  the  covenants  independent  of  each 
other,  and  the  contractor  bound  to  deduct  the  stipulated  forfeiture,  notwith- 
standing the  default  of  the  company.  Mcintosh  v.  Midland  Counties  Railway 
Co.,  14  M.  &  W.  548;  s.  c.  3  Railw.  Cas.  780.  The  rule  of  law  that  cove- 
nants, which  are  not  the  entire  consideration  for  each  other,  will  ordinarily  be 
[*420J 


§  117.]       KQUITAULE   RELIEF   FROM    DECISIONS   OF    ENGINEERS.  Ml 

to  *  enforce  the  comi)le(ion  of  the  works:  That  if  tlic  engineer 
should  not  be  satisfied  witli  the  works,  after  notice  given  to  the 
contractor,  *  and  his  default  in  complying  for  seven  days  to  take 
possession  of  the  works,  thereupon  the  plant  and  materials  of  the 
contractor,  *  and  all  the  work  done  and  not  paid  for,  and  the 
reserved  fund  to  be  forfeited  to  the  company. 

*  2.  The  company  having  taken  the  forfeiture  under  the  con- 
tract, the  plaintiff  filed  his  bill,  insisting  that  the  engineer  had 
underestimated  the  work  .£30,000,  and  that  no  forfeiture  had  been 
incurred  by  him,  and  praying  that  the  company  might  elect  to 
permit  the  plaintiff  to  complete  the  works,  or  that  the  contract 
might  be  considered  at  an  end,  and  in  either  case  an  account 
between  the  parties  might  be  taken.. 

*  3.  The  Lord  Chancellor  held,  that  the  facts  alleged  do  entitle 
the  plaintiff  to  relief  in  equity.  The  plaintitf  amended  his  bill, 
and  alleged  that  the  most  expensive  masonry  had  been  paid  for 
only  at  the  price  of  inferior  work,  and  claimed  large  sums  in  that 
respect,  and  also  alleged  fraud  against  the  company,  in  the  con- 
tracts and  in  the  certificates. 

4.  It  was  held,  that  the  investigations  as  to  the  sufficiency  of 
the  payments  made  could  only  be  made  in  a  court  of  c(|uity. 

5.  That  the  evidence  in  support  of  an  allegation  of  fraud  must 
be  very  clear,  and  that  it  is  not  enough  to  show  that  the  state- 
ments of  the  company  as  to  the  nature  of  the  work  gave  imjior- 
fect  information,  but  it  must  also  be  shown  that  the  contractor 
could  not  with  reasonable  diligence  have  acquired  all  necessary 
information. 

6.  The  fact  of  the  engineer  being  a  shareholder  in  the  company 
is  not  enough  to  avoid  his  decision,  as  the  contractor  might  have 
ascertained  this  fact.  The  character  of  an  engineer  is  of  more 
value  to  him  than  his  interest  as  a  shareholder, 

7.  That  the  decision  of  the  engineer  as  to  the  quality  of  the 
work  is  conclusive,  but  not  as  to  the  quantity.  The  question  of 
measurement  and  calculation  will  be  entertained  and  decided  by 
a  court  of  equity. 

8.  That  where  the  parties  have  entered  into  now  contract.-^,  it 

construed  as  independent,  unless  there  is  something  in  the  transaction  whioh 
shows  that  the  parties  regarded  thera  as  dependent,  is  here  carried  further 
than  reason  and  justice  would  seem  to  justify.  The  case  would  hardly  be 
followed  in  this  country. 

[*421-*425] 


442  CONSTRUCTION    OP   RAILWAYS.  [PART   IV. 

will  be  considered  a  condonation  of  old  injuries,  unless,  at  the 
time  of  making  the  new  contract,  the  plaintiff  insisted  upon  his 
adverse  claims,  the  parties  being  at  liberty  to  proceed  at  law. 

9.  After  the  works  were  completed  by  the  company  the  court 
ordered  an  account  taken,  directing  special  inquiries  as  to  the 
amount  and  kind  of  work  done. 

10.  It  was  held  that  stipulations  in  regard  to  penalties  in  these 
contracts  are  binding  upon  the  parties,  and  no  relief  against  them 
will  be  afforded  in  equity  unless  fraud  be  shown.  And  that, 
where  it  had  been  agreed  that  a  written  contract  should  form 
part  of  an  unwritten  one,  this  will  include  stipulations  as  to  for- 
feiture.i 

11.  In  one  case  in  Pennsylvania  ^  it  was  decided  that  the  esti- 
mates and  decisions  of  the  engineer  of  a  railway  company  arc 
conclusive,  in  disputes  with  contractors,  only  where  such  is  the 
positive  stipulation  of  the  contract ;  that  in  every  other  case  the 
*  correctness  of  such  estimates  is  to  be  tested  by  evidence,  and 
in  an  action  against  the  company  by  a  contractor  to  recover  a 
balance  claimed  to  be  due  for  work,  it  is  correct  to  instruct  the 
jury  to  rely  on  the  engineer's  final  estimates  unless  shown  to  be 
erroneous. 

12.  In  such  a  contract,  where  a  supplemental  contract  was 
made  by  the  company,  assuming  the  work,  and  agreeing  to  pay 
the  contractor  for  what  work  he  had  done,  and  reserving  no  claim 
for  damages,  either  on  account  of  the  suspension  of  the  work  or 
its  not  being  completed,  it  was  held  that  the  contractor  was  enti- 
tled to  compensation  according  to  the  stipulations  of  the  supple- 
mental contract,  without  any  deductions  on  account  of  suspension 
of  or  not  completing  the  work,  and  that  the  work  done  and  agreed 
to  be  compensated  must  be  estimated  at  what  it  was  worth,  and  the 
contractor's  claim  could  not  be  restricted  to  what  would  be  com- 
ing to  him  under  the  final  estimates  of  the  engineer  ;  nor  could 
the  company  claim  any  deductions  on  account  of  loss  incurred  in 
completing  the  work.^ 

13.  And  where  the  plaintiff  stipulated  to  perform  the  work  of 
shifting  the  track  of  a  railway,  under  the  direction  and  to  the 
satisfaction  of  the  city  surveyor,  whose  certificate  that  the  work 
had  been  so  performed  was  to  entitle  him  to  payment,  it  was  held, 

2  Memphis  Kailroad  Co.  v.  Wilcox,  48  Penn.  St.  161. 
[*426J 


^  118.]  FRAUDS    IN    CONTRACTH    FOR   CONRTRUCTTON.  413 

that  where  the  surveyor  directed  that  the  work  should  not  be  done 
beyond  a  certain  jjoint,  that  was  a  valid  excuse  for  not  obtaining 
his  certificate  of  performance  beyond  that  j)oint.^ 


SECTION   XIV. 
Frauds  in  Contracts  for  Construction. 


1.  Relievable  in  equity  on  general  prin- 

ciples. 

2.  Statement  of  leading  cases  upon  this 

subject. 


3.  No  definite  contract  closed,  no  relief 
granted. 


§  118,  1.  It  is  well  known  that  courts  of  equity  will  relieve 
against  fraud  practised  by  the  agents  of  railways,  in  building 
contracts,  the  same  as  in  other  cases  of  fraud.  But  the  imi)or- 
tance  and  peculiar  nature  of  these  contracts  will  justify  a  brief 
note  of  the  cases  decided  upon  the  subject. 

*  2.  The  most  important  case  in  the  English  books  upon  this 
subject,  is  that  of  Ranger  v.  The  Great  Western  Railway,  which 
we  have  just  referred  to  upon  another  point.^  And  the  statement 
*of  that  case,  in  the  House  of  Lords,  by  the  Lord  Chancellor 
Cranworth,  is  a  better  commentary  than  elsewhere  exists,  *  upon 
this  subject.  The  general  subject  of  fraud  in  railway  companies, 
in  regard  to  building  contracts,  is  somewhat  considered  in  a  late 
case  in  the  Supreme  Court  of  Vermont.^ 

*  3.  But  it  is  clear  that  where  no  binding  and  complete  con- 
tract has  been  entered  into  by  the  company,  although  the  tenders 
made  by  a  contractor  have  been  accepted  by  their  engineer, 
authorized  to  act  on  their  behalf,  and  the  contractor  has  incurred 
*  expense  upon  the  faith  of  having  the  contract,  in  preparation  to 
I'uUil  it,  there  being  certain  alternatives  in  the  tender,  which  had 
not  been  decided  upon,  and  the  whole  thing  being  given  up  and 
no  specific  contract  made  under  the  seal  of  the  company,  equity 

^  Devlin  v.  Second  Avenue  Railroad  Co.,  44  Barb.  81. 
^  1  Kailw.  Cas.  1 ;  s.  c.  3  Railw.  Ca.s.  298.     8.  c.  on  appeal  to  House  of 
Lords,  27  Eng.  L.  &  Eq.  35,  41;  s.  c.  13  Sim.  368;  5  H.  L.  Cas.  72. 

*  Ilerrick  v.  Vermont  Central  Railroad  Co.,  27  Vt.  G73;  s.  c.  1  Redf.  Am. 
Railw.  Cas.  305. 

[*427-*431J 


444 


CONSTRUCTION    OP   RAILWAYS. 


[part   IV. 


can  grant  no  relief.^  For  if  there  was  no  contract  equity  could 
not  create  one,  and  if  there  was  a  valid  contract  the  remedy  at 
law  is  adequate. 

SECTION  XV. 


Engineer's  Estimate  wanting  through  Fault  of  Company. 


1.  Relief  in  equity  where  estimate  of  en- 

gineer is  wanting  tlirough  fault  of 
company. 

2.  Grounds  of  equitable  interference. 

3.  Contract  terminated   other  porty  en- 

joined from  interference. 

4.  Stipulation   requiring  engineer's  esti- 

mate, not  void. 

5.  Not  the  same  as  an  agreement,  that  all 

disputes  shall  be  decided  by  arbi- 
tration. 


6.  Engineer's  estimate  proper  condition 

precedent. 

7.  Same  as  sale  of  goods  at  the  valua- 

tion of  third  party. 

8.  Result  of  all  the  English  cases,  that 

the  question  of  damages  only  prop- 
erly referable  to  the  engineer. 

9.  Rule  in  this  respect  different  in  this 

country. 


§  119.  1.  Where,  by  the  terms  of  a  railway  construction  con- 
tract, executed  under  the  seals  of  the  parties,  the  work  is  to  be 
paid  for,  from  time  to  time,  upon  the  estimate  and  approval  of 
the  company's  principal  engineer,  and  the  amount  and  quality  of 
the  work  finally  to  be  determined  in  the  same  mode,  no  action, 
either  at  law  or  in  equity,  can  be  maintained  until  such  estimate 
and  approval  is  obtained,  unless  it  is  prevented  by  the  fault  of 
the  company.  But  where  no  such  engineer  is  furnished  by  the 
company,  or  where  through  their  connivance  he  neglects  to  act, 
the  contractor  is  not  without  remedy,  in  equity.^  (a)  Lord  Chan- 
cellor Cottenham,  in  affirming  this  decision,^  says :  — 

2.  "  It  is  true  that  the  specification  and  contract  constitute  a 
relationship  between  the  plaintiffs  and  the  defendants,  which,  if 
correctly  acted  upon,  would  have  given  to  the  plaintiffs  a  legal 

8  Jackson  v.  North  Wales  Railway  Co.,  1  Hall  &  T.  75;  s.  c.  6  Railw.  Cas. 
112. 

1  Mcintosh  I'.  Great  Western  Railway  Co.,  2  De  G.  &  S.  758.  This  is  the 
decision  of  the  Vice  Chancellor,  which  came  before  the  Lord  Chancellor,  with 
the  result  stated  in  the  text. 

■^  iMcIutosh  V.  Great  Western  Railway  Co.,  2  Hall  &  T.  250;  s.  c.  2  Macn. 
&  G.  74. 


[*431] 


(a)  See  supra,  %  116,  note  (a). 


i>  119.]  ENGINEER'S   ESTIMATE.  41') 

*  right,  and  a  legal  right  only,  to  the  honcfits  they  claimed  by  this 
bill.  But  if  the  facts  stated  in  the  bill  arc  such  as,  if  true,  de- 
prive the  plaintiffs  of  the  means  of  enforcing  such  legal  rights, 
ind  if  those  facts  have  arisen  from  the  conduct  of  the  defendants, 
or  of  their  agent  so  recognized  by  the  specification  and  contract, 
and  now  used  for  the  fraudulent  purpose  of  defeating  the  plain- 
tiffs' claim  altogether,  the  defendants  cannot  resist  the  plaintiffs* 
claim  in  equity  upon  the  ground  that  their  remedy  is  only  at  law ; 
nor  is  it  any  answer  to  show  that,  if  the  plaintiffs  cannot  get  at 
law  what  they  contracted  for,  they  may  obtain  compensation  in 
damages.  It  is  no  answer  to  a  bill  for  specific  performance  that 
the  plaintiffs  may  bring  an  action  for  damages  for  a  breach  of 
the  contract,  or,  in  a  proper  case  of  a  bill  for  discovery  of  some 
specific  chattels,  that  damages  may  be  recovered  in  trover,  —  the 
language  of  pleading  is  not  that  the  plaintiffs  have  no  remedy, 
but  no  adequate  remedy  save  in  a  court  of  equity.  It  is  therefore 
no  answer  in  the  present  case  for  the  defendants  to  urge,  that  if 
they  or  their  agent  have  been  neglectful  of  what  they  undertook 
to  do,  by  which  the  plaintiffs  have  suffered,  they  may  be  liable  in 
damage  to  the  plaintiffs.  They  contracted  for  a  specific  thing, 
and  are  not  bound  to  take  that,  or  something  in  lieu  of  it,  if  such 
other  thing  be  not  what  this  court  considers  as  a  fair  equivalent. 
I  do  not  therefore  consider  that  any  answer  is  given  to  the  plain- 
tiffs' riglit  to  file  a  bill  in  this  court  by  showing  that  the  ground 
upon  which  they  seek  their  right  so  to  do,  namely,  the  being 
barred  of  their  legal  remedy  by  the  conduct  of  the  defendants, 
may  subject  them  to  damages  at  law." 

3.  And  where  disputes  arose  between  the  contractor  and  the 
company,  each  charging  default  upon  the  other's  part,  and  claim- 
ing the  right  to  occupy  the  works,  and  the  workmen  of  both  com- 
ing in  collision  upon  the  line  of  the  road,  and  the  completion 
and  opening  of  the  road  being  delayed  in  consequence,  the  court, 
on  the  application  of  the  company,  restrained  the  contractor  from 
continuing  on  the  line  or  interfering  with  the  operations  of  the 
company,  but  directed  an  account  of  what  was  due  the  contractor, 
without  regard  to  the  former  certificates  of  the  company's  engi- 
neer, and  an  issue  to  try  Avhethcr  the  company  were  justified  in 
removing  the  contractor,  reserving  all  claims  for  loss  and  com- 
pensation  till  the  final  hearing.^ 

'  East  Lancashire  Railway  Co.  r.  Hattersley,  S  Hare,  72. 

[*432] 


44G  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

*  And  in  a  somewhat  recent  case,^  by  the  terms  of  the  contract 
it  was  provided,  tliat  if  the  contractor  made  default  the  company 
might  themselves  complete  the  line,  and  that  the  plant,  &c.,  upon 
the  line  belonging  to  the  contractor  should  become  the  property 
of  the  company,  and  be  set  off  against  the  delfts,  if  any,  due  from 
him  to  the  companj^,  and  that  the  contractor  should  not  hinder 
the  company  from  using  the  same.  Default  having  been  made 
by  the  contractor,  the  company  completed  the  line  and  were  pro- 
ceeding to  remove  the  plant,  &c.  An  arbitration  was  pending  to 
decide  the  question  of  amount  between  the  contractor  and  the 
company.  It  was  held  that  the  company  must  be  enjoined  from 
removing  the  plant  before  award  given. 

Lord  RoMiLLY,  M.  R.,  here  suggests  that  the  company  have  no 
right  to  take  the  plant  until  it  appears  that  the  contractor  is  in- 
debted to  them ;  but  we  should  have  said  that  under  such  a  con- 
tract the  fair  construction  is  that  the  company  may  take  and  use 
the  plant  in  completing  the  line,  making  themselves  debtor  to 
the  contractor  for  the  same.  The  purpose  of  such  a  stipulation 
presumptively  is,  that  the  work  may  not  be  interrupted  by  the 
change  of  hands  from  the  contractor  to  the  company.  But  after 
the  road  is  completed,  so  far  as  the  contract  extended,  and  the 
company  had  made  no  use  of  the  plant,  the  view  suggested  by  his 
lordship  seems  entirely  just  and  reasonable. 

4.  The  question  of  the  right  to  recover  at  all  at  law,  without 
procuring  the  engineer's  estimate,  where  that  is  made  a  condi- 
tion precedent  in  the  contract,  has  been  considerably  discussed 
in  the  English  courts,  and  especially  in  the  important  case  before 
the  House  of  Lords,  in  July,  185G  ;  ^  and  the  result  arrived  at 
seems  to  be,  that  such  a  clause  in  a  contract,  in  regard  to  the  basis 
of  recovery,  is  not  equivalent  to  a  stipulation  that  no  action  shall 
be  brought,  or  that  the  case  shall  not  come  before  the  courts  of 
law  or  equity,  which  has  long  since  been  determined  to  be  repug- 
nant and  void.^  (6) 

*  Garrett  v.  Salisbury  &  Dorset  Junction  Railway  Co.,  Law  Rep.  2  Eq.  358; 
s.  c.  12  Jur.  N.  s.  49.5. 

5  Scott  V.  Avery,  5  H.  L.  Cas.  811 ;  s.  c.  3(5  Eng.  L.  &  Eq.  1. 

6  Thompson  v.  Charnock,  8  T.  R.  139.  See  also  Tattersall  v.  Groote,  2 
B.  &  P.  131. 

(b)  In   Kistner   v.  Indianapolis  &     Eng.    Railw.    Cas.   3U,  it   was  held 
St.   Louis   Railroad   Co.,    12   Am.  &    that  it  was  the  duty  of  the  company 
[*433] 


§  119.]  ENGINEER'S    ESTIMATE.  417 

5.  The  distinction  is  somewhat  refined,  and  difTicult  of  exact 
definition,  but  it  seems  to  us  not  altogetlier  witliout  foumlatiun. 
A  stipuhition,  that  no  action  shall  ever  be  brought  uj)on  a  eon- 
tract,  *or,  what  is  equivalent,  that  all  disputes  under  it  shall  be 
referred  to  arbitration,  is  a  repugnancy,  which  if  carried  out  liti- 
erally  must  render  the  contract  itself,  as  a  mode  of  legal  redress, 
wholly  idle.  And  it  is  only  in  this  view  that  contracts  are  to  be 
considered  by  the  courts. 

6.  But  a  stipulation  that  the  liability  under  a  contract  or  cove- 
nant shall  not  accrue,  except  upon  the  basis  of  certain  previously 
ascertained  facts,  where  the  contract  contains  provisions  for  ascer- 
taining them,  by  the  action  of  either  party,  without  the  concurrence 
of  the  other,  is  no  more  than  a  limitation  upon  the  right  of  action, 
as  that  no  action  shall  be  brought  until  after  one  year,  or  unless 
commenced  within  six  months,'^  which  have  been  held  valid.  And 
even  where  the  concurrence  of  both  parties  is  requisite  and  the 
{)crformancc  of  the  condition  fails  through  the  refusal  of  one,  it 
probably  is  the  same  as  to  the  other  as  if  performed. 

7.  Hence  a  contract  to  purchase  goods  at  the  valuation  of  N. 
and  M.,  cannot  be  made  the  foundation  of  an  action,  without  obtain- 
ing the  valuation  stipulated,  or  showing  that  the  other  pai-ty  hin- 
dered it.^  And  in  some  cases  it  has  been  held,  that  if  the  obtaining 
of  the  estimate  is  withheld  or  defeated  by  the  fraud  of  the  other 
party,  no  action  at  law  will  lie,  the  only  remedy  being  by  a  special 
action  for  the  fraud,  or  in  equity,  perhaps.^ 

''  Wilson  V.  iEtna  Insurance  Co.,  27  Vt.  99,  and  cases  there  cited. 

8  Thuinell  v.  Balbirnie,  2  M.  &  W.  786;  Mihies  v.  Gery,  U  Ves.  400. 

^  Milner  r.  Field,  5  Exch.  829.  But  in  a  later  case  in  the  same  court  it 
it)  said  that  the  award  must  be  obtained,  or  it  must  be  .shown  that  it  is  no 
longer  practicable  to  obtain  it.  Brown  v.  Overbury,  11  Exch.  715;  s.  c.  -H 
Eng.  L.  &  Eq.  GIG.  This  rule,  with  tlic  (lualification'that  the  defendant  by  his 
own  act  or  refusal  has  rendered  the  performance  of  the  condition  impracticable, 
is  now,  in  this  country  certainly,  held  such  an  excuse  as  will  enable  the  party 
to  sue  in  a  court  of  law.  United  States  v.  Robeson,  9  Pet.  319,  320.  And  in 
Snodgrass  v.  Gavit,  28  Penn.  St.  221,  Mr.  Justice  Woodwako  assumes  it  ns 
the  unquestionable  rule,  in  that  state,  that  "  where  parties  stipulate  that  dis- 
putes, whetlier  actual  or  prospective,  shall  be  submitted  to  the  arbitrament  <>f 
a  particular  individual,  or  tribunal,  they  are  bound  by  their  contract,  and 
cannot  seek  redress  elsewhere." 

to  see  that  the  engineer  made  his  esti-     action  miglit  be   maintained  for  the 
mates,  and  that  in  default  thereof  an     sum  reallv  duo. 

[•434] 


448  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

8.  This  subject  is  very  clal)orately  discussed  by  the  judges  be- 
fore the  House  of  Lords,  in  the  case  of  Scott  v.  Avery ,^  and  it  is 
remarkable  how  wide  a  difference  of  opinion  was  found  to  exist, 
upon  a  question  which  might  seem  at  first  blush  so  simple.  Of 
the  nine  judges  who  gave  formal  opinions,  three  were  opposed  to 
allowing  any  force  whatever  to  such  a  stipulation.  And  of  the 
*  other  six,  four  held  that  only  the  question  of  damages  can  properly 
be  made  to  depend,  as  a  condition  precedent,  upon  the  award  of  an 
arbitrator,  while  two  held  that  the  award  may  be  made  to  include 
all  matters  of  dispute  growing  out  of  the  contract,  which  it  seems 
to  us  must  be  regarded  as  equivalent  to  saying  that  no  action  at 
law  or  in  equity  shall  be  brought  to  determine  any  controversy 
growing  out  of  the  contract,  which  all  the  judges  agree  is  a  void 
stipulation.  We  therefore  feel  compelled  to  adopt  the  view  that 
upon  principle,  and  the  fair  balance  of  authority,  such  a  stipula- 
tion, in  regard  to  estimating  labor  or  damages,  under  a  contract 
for  construction,  is  valid,  and  may  be  treated  as  a  condition  prece- 
dent, but  that  beyond  that,  the  present  inclination  of  the  English 
courts  is  to  hold  that  it  is  repugnant  to  sound  policy,  and  subver- 
sive of  the  legal  obligation  of  the  contract,  as  being  equivalent 
to  a  stipulation  that  no  action  at  law  shall  be  brought  upon  the 
contract,  but  only  upon  the  award,  if  not  paid. 

9.  But  the  balance  of  authority  in  this  country  seems  to  be  in 
favor  of  allowing  such  a  condition  precedent,  in  this  class  of  con- 
tracts, to  extend  to  the  quality  of  the  work,  as  well  as  the  quan- 
tity, and  to  the  question,  whether  the  work  is  progressing  with 
sufficient  rapidity,  and  whether  the  company  on  that  account  arc 
justified  in  putting  an  end  to  the  contract.^  It  seems  reasonable 
to  us,  on  many  grounds,  that  contracts  of  this  magnitude  and 
character  should  receive  a  somewhat  different  interpretation  in 
this  respect  from  that  which  is  applied  to  the  ordinary  commercial 
transactions  of  the  country,  as  has  been  held  in  regard  to  pecu- 
niary penalties.^^  We  should  not  therefore  feel  justified  in  in- 
timating anv  desire  to  see  the  American  cases  on  this  subject 
qualified. 

^0  Supra,  §§  116,  117.     Under  the  English  statute,  the  Railway  Arbitration 
Act,  agreements  between  companies  to  refer  all  disputes  between  them  to 
arbitration  are  peremptorily  enforced  by  the  courts.     Llannelly  Railway  & 
Dock  Co.  V.  London  &  Isorthwestern  Railway  Co.,  20  W.  R.  898. 
[*435] 


120.] 


CONTUACTS    FOR    MATEIUALS    AND    MACIIINEUY. 


41U 


SECTION   XVI. 


Contracts  for  Materials  and  3Iac1iuiery. 


1.  Manufacturer  of  niauliinery,  etc.,  not 

liable  for  latent  defect  in  materials. 

2.  Contract  for  railway  sleepers,   terms 

stated. 

3.  Construction   of  such  contract. 


Party  may  waive  stipulation  in  con- 
tract by  acquiescence. 

Company  liable  for  materials  accepted 
and  used. 


§  120.  1.  In  a  contract  for  fire  engines,  it  was  stijmlatcd  tliat 
the  engines  and  tender  should  be  subject  to  the  performance  of 
*  one  thousand  miles,  with  proper  loads,  the  manufacturers  to  be 
liable  for  any  breakage  which  may  occur  through  defect  of  ma- 
terials or  workmanship,  but  not  where  it  occurs  from  collision, 
neglect,  or  mismanagement  of  the  company's  servants,  or  any 
other  cause,  except  the  two  first  named.  The  trial  to  take  i)lace 
within  one  month  from  the  day  on  whicli  any  engine  is  reported 
ready  to  start,  in  default  of  which  the  manufacturers  to  be  re- 
leased from  all  responsibility.  It  was  specially  agreed  the  lire- 
boxes  should  be  of  copper,  7-lOths  of  an  inch  thick.  One  of  the 
engines,  so  supplied,  performed  the  thousand  miles  according  to 
the  contract;  but  some  months  after  the  fire-box  burst,  when  it 
was  discovered  that  the  copper  was  reduced  to  3-lGths  of  an  inch 
in  thickness,  it  being  conceded  it  was  originally  of  the  thickness 
required  by  the  contract.  In  an  action  for  the  price  of  the  engine, 
which  by  the  contract  was  to  be  paid  upon  the  satisfactory  com- 
pletion of  the  trial,  it  was  held  the  defendants  could  not  give  evi- 
dence of  such  defect  in  the  copper,  no  fraud  being  alleged,  and 
that,  by  the  terms  of  the  contract,  the  three  months'  trial  having 
been  satisfactory,  released  the  manufacturers  from  all  responsi- 
bility in  respect  of  bad  materials  and  workmanship.^ 

2.  In  a  contract  for  railway  sleei)ers,-  it  was  stipulated  that 
the  plaintijffs  below  should  supply  the  defendants  below  with 
350,000   sleepers,   the  contract   before    having  recited    that    the 

1  Sharp  V.  Great  Western  Railway  Co.,  2  Railw.  Gas.  722;  s.  c  9  M.  & 
AV.  7. 

-  Great  Xorthern  Railway  Co.  r.  Harrison,  14  Eng.  L.  ^:  Kq.  169;  12  C  B. 
576;  s.  c.  8  Eng,  L.  &  Eq.  -IGO;  11  C.  13.  615. 

VOL.  I.  — 29  [*43G] 


450  CONSTRUCTION    OF   RAILWAYS.  [PART   IV. 

defendants  were  desirous  of  being  supplied  with  that  number  of 
railway  sleepers.  The  contract  specified  that  the  plaintiffs  were 
Avilling  to  supply  them  according  to  a  specification  and  tender, 
which  stated  that  the  number  of  sleepers  required  was  350,000, 
that  one-half  would  have  to  be  delivered  in  1847,  and  the  remain- 
der by  midsummer,  1848 ;  and  the  contract  also  contained  a  cove- 
nant to  supply  the  sleepers  within  the  time  specified,  "  as,  and 
when,  and  in  such  quantities,  and  in  such  manner,"  as  the  engineer 
of  the'company  by  orders  in  writing,  "  from  time  to  time,  or  at  any 
time  within  the  time  limited  by  the  specification,  should  require." 
The  deed  also  contained  a  provision,  that  the  engineer  might  vary 
the  time  of  delivery  ;  that  the  company  should  retain  in  their  hands 
X 2,000  as  security  for  the  performance  of  the  contract,  and  should 
pay  it  over  within  two  months  after  the  sleepers  had  been  deliv- 
ered ;  and  *  that  the  contract  might  be  determined  upon  the  default 
or  bankruptcy  of  the  plaintiffs. 

3.  It  was  held  that  there  was  an  implied  covenant  on  the  part 
of  the  company  to  take  the  whole  number  of  350,000  sleepers ; 
that  an  order  by  the  engineer  was  a  condition  precedent  to  any 
delivery  of  the  sleepers  by  the  plaintiffs ;  that  the  company  were 
bound  to  cause  such  order  to  be  given  within  the  time  limited  by 
the  specification ;  that  although  the  engineer  had  power  to  alter 
the  time  for  the  delivery  of  the  sleepers,  such  power  was  to  be 
exercised  within  the  period  limited  by  the  specification  ;  that  the 
engineer,  as  to  matters  in  which  he  had  a  discretion,  e.  g.,  as  to 
varying  the  time  of  delivery  of  the  sleepers,  stood  in  the  posi- 
tion of  ar])itrator  between  the  parties,  but  as  to  giving  the 
order  for  the  delivery  he  was  a  mere  agent  of  the  company  ;  that 
the  only  legitimate  rule  of  construction  is  to  ascertain  the  mean- 
ing from  the  language  used  in  the  instrument,  coupled  with  such 
facts  as  are  admissible  in  evidence,  to  aid  its  explanation. — 
Per  Parke,  B. 

4.  It  has  been  held,  also,  in  a  contract  with  a  railway  company 
to  deliver  iron,  "  near  the  months  of  July  and  August,"  and  the 
delivery  continuing  till  the  25th  of  October,  and  the  company  not 
objecting  to  receive  it,  that  they  were  bound  by  the  terms  of  the 
contract,  one  of  which  was  that  they  were  to  give  their  notes  for 
each  parcel  of  iron  as  it  was  shipped.^ 

^  Bailey  v.  Western  Vermont  Railroad  Co.,   18  Barb.   112.     It  was  also 
held,  here,  that  the  refusal  of  the  company  to  give  notes  as  stipulated,  ex- 
[*437] 


§  1^1-] 


PAYMENTS   IN    STOCK   OF   TUE    COMPANY. 


451 


5.  So,  too,  under  the  EnL^lisli  statute,'*  wliicli  provides  tliat  tlie 
directors  of  a  railway  company  may  contract  Ijy  parol,  on  behalf 
of  the  company,  where  private  persons  may  make  a  valid  parol 
contract,  it  was  held,  where  the  agent  of  the  company  agreed  by 
parol  with  the  plaintiff  to  purchase  of  him  a  quantity  of  railway 
sleepers  upon  certain  terms,  the  sleepers  being  delivered  and  used 
by  the  company,  that  they  were  liable.^ 


*  SECTION   XVII. 


Contract  to  Pay  in  the  Stock  of  the   Company. 


1.  Breach  of  such  contract  generally  enti- 

tles the  party  to  recover  tlie  nomi- 
nal value  of  stock. 

2.  But  if  tiie  party  have  not  strictly  per- 

formed, he  cancecover  only  market 
value. 


3.  Casli  portion  overpaid  will   only  re- 
duce stock  portion  dollar  fur  dollar. 
n.  2.  Lawful    incumbrance    on    com- 
pany's property  will  not  excuse  cou- 
tractor  from  accepting  stock. 


§  121.  1.  In  many  contracts  for  construction,  the  whole  or  a 
portion  of  the  price  is  stipulated  to  be  paid  in  the  stock  of  the  com- 
pany, as  the  work  progresses,  at  certain  stages,  or  when  it  is  com- 
pleted. The  time,  place,  and  mode  of  payment  in  such  cases  will 
be  the  same  ordinarily  as  in  other  contracts  for  payment  of  stock. 
If  the  company  refuse  or  neglect  to  deliver  the  stock  or  the  proper 
certificates  when  it  becomes  due,  upon  proper  request  or  oppor- 
tunity, they  are  generally  liable,  it  is  considered,  as  in  other  cases 
of  failure  to  perform  contracts,  for  a  certain  amount  or  value,  in 
collateral  articles  expressed  in  currency.^ 

cused  the  plaintiff  from  delivering  or  tendering  the  remainder  of  the  iron, 
until  the  company  should  tender  notes,  and  entitled  plaintiff  to  sue  presently. 

<  Statute  8  &  9  Vict.  c.  IG. 

*  Paulding  v.  London  &  Northwestern  Railway  Co.,  8  Exoh.  807;  8.  c.  22 
Eng.  L.  &  Eq.  500.  Tlie  contract  was  made  by  the  engineer's  clerk,  who  was 
also  clerk  of  the  company,  but  there  was  evidence  of  the  assent  of  the  com- 
mittee. Lowe  V.  London  &  Northwestern  Railway  Co.,  18  Q.  B.  032;  s.  c 
U  Eng.  L.  &  Eq.  18. 

^  Moore  v.  Hudson  River  Railroad  Co.,  12  Barb.  150.  Here,  where  a  portion 
of  the  price  of  construction  was  payable  in  stock,  at  par,  within  thirty  days  after 
the  completion  of  the  contract,  it  was  held  that  the  company  was  not  bound 
to  make  any  tender  of  the  stock,  as  in  case  of  contracts  for  specific  articles, 

[•438] 


452  CONSTRUCTION   OF   RAILWAYS.  [PART   IV. 

2.  But  it  was  held,  that  where  the  plaintijEf  recovered  a  balance 
due  on  equitable  grounds,  and  not  on  the  ground  of  strict  and 
full  performance  of  the  contract,  he  was  precluded  on  like  equita- 
ble grounds  from  recovering  more  for  the  stock  portion  of  the 
contract  than  its  market  value  at  the  commencement  of  the  action.^ 

but  that  it  was  a  payment  in  depreciated  currency,  and  no  tender  was  neces- 
sary. In  In  re  Alexandra  Park  Co.,  12  Jur.  n.  s.  482,  where  the  contractor 
stipulated  to  accept  a  portion  of  his  pay  in  stock,  at  the  election  of  the  com- 
pany, it  was  held  that  he  was  not  bound  by  such  an  election  after  the  company 
was  ordered  to  be  wound  up  as  insolvent,  as  the  shares  thereby  became 
extinguished. 

2  Barker  v.  Troy  &  Rutland  Railroad  Co.,  27  Vt.  76G.  In  this  case  tlie 
court  say:  "  If  the  defendants  have,  upon  reasonable  request,  declined  jniying 
the  amount  due,  in  their  stock,  as  stipulated,  it  would  seem  but  reasonable 
they  should  pay  the  amount  in  money."  See  supra,  §  38.  But  if  the  con- 
tractor perform  extra  work,  he  is  entitled  to  recover  for  that,  in  money,  on  an 
implied  promise,  although  by  his  contract  he  was  to  accept  part  of  his  pay  in 
stock  for  all  work  done  under  the  contract.  Childs  v.  Somerset  &  Kennebec 
Railroad  Co.,  20  Law  Rep.  561.  In  Cleveland  &  Pittsburg  Railroad  Co.  v. 
Kelley,  5  Ohio  St.  180,  it  is  held,  that  where  one  fourth  of  the  amount  due 
the  contractors  is  to  be  taken  in  the  stock  of  the  company,  and  the  company 
refuses  to  deliver  the  stock  on  request,  it  is  liable  only  for  the  market  value  of 
the  stock  at  the  time  it  should  have  been  delivered.  The  court  professes  to 
base  its  opinion  on  the  ground  that  in  contracts  of  this  character  there  is  not 
understood  to  be  any  election  reserved  by  the  company  to  pay  either  in  stock 
or  in  money,  but  that  it  is  an  absolute  undertaking  to  deliver  so  much  stock 
as  shall,  at  its  par  value,  be  equal  to  one  fourth  the  amount  due  tlie  contractor. 
It  is  not  clear  how  this  relieves  the  question  from  the  apparent  violation  of 
principle,  in  allowing  the  company  to  refuse  to  give  certificates  of  its  own 
stock,  which  it  has  contracted  to  do,  and  at  the  same  time  pay  less  than  its 
par  value.  It  is,  in  ordinary  cases,  equitable,  no  doubt,  and  always  where  the 
refusal  is  on  the  ground  that  nothing  is  due  the  contractor. 

See  also  Boody  v.  Rutland  &  Burlington  Railroad  Co.,  24  Vt.  660,  where 
it  was  held  that  the  company  having  given  its  creditors  a  mortgage  on  its 
road,  after  the  contract  with  the  plaintiff,  did  not  excuse  him  from  accepting 
the  stipulated  proportion  of  the  payments  in  stock.  Nor  can  the  contractors, 
in  such  case,  refuse  to  receive  the  stock,  because  the  legislature,  in  the  mean 
time,  has  altered  the  charter  of  the  company,  so  as  to  increase  the  capital  stock 
and  debt  of  the  company;  nor  because  the  company  has  voted  not  to  pay 
interest  on  the  stock  in  money,  as  it  had  before  done,  it  not  appearing  that  the 
value  of  the  stock  has  been  affected  by  either.  Moore  v.  Hudson  River  Rail- 
road Co.,  12  Barb.  156.  And  where  a  company,  in  settlement  with  a  con- 
tractor, agreed  to  pay  him  a  certain  amount,  in  stock  or  the  bonds  of  the 
company,  at  his  election,  the  company  retaining  the  same  as  security  for  cer- 
tain liabilities  on  account  of  the  contractor,  and  gave  the  contractor  a  certifi- 
cate of  such  stock,  with  an  agreement  endorsed,  to  exchange  it  for  bonds,  at 
[*438] 


§  ^22.j 


TIME    AND    MODE    OF    PAYMENT. 


4o3 


*  3.  So,  too,  where  the  work  is  to  be  paid  partly  in  stock  and 
partly  in  money,  if  the   money  i)art  be  overjiaid,  even  by  doinjr  a 

•  portion  of  the  work,  which  the  jjarty  reserved  the  ridit  to  do  in 
order  to  hasten  the  Avork,  it  will  only  reduce  the  stock  payment 

•  dollar  for  dollar,  and  not  according-  to  the  market   value   of  the 
stock  at  the  time.^ 


SECTION  XVIII. 


Time  and  3Iode  of  Payment. 


1.  No  time  specified,  payment  due  only 

when  work  completed. 

2.  Stock   payments   must  ordinarily  be 

demanded. 


3.  But  if  company  pay  monthly,  such 

usage  qualifies  contract. 

4.  Contract  to  build  wall   by  cubic  yard, 

implies  measurement  in  the  wall. 


§  122.  1.  Where  no  time  of  payment  is  specified  in  terms  in  the 
written  contract  between  the  parties  for  the  construction  of  a  por- 
tion of  a  railway,  it  was  held,  that  lookinu"  to  the  contract  alone 
the  contractor  could  not  call  for  payment  either  of  the  cash  or 
stock  portion  of  the  contract,  until  a  complete  performance  of  the 
contract  on  his  part.^  Or,  upon  the  most  favorable  construction, 
until  some  distinct  portion  of  the  work,  for  which  the  contract 
li.xcd  a  specific  price,  was  accomplished.^ 

2.  In  regard  to  the  stock  portion  of  the  payments,  a  special 
demand  was  necessary  before  the  contractor  could  maintain  an 
action  for  it  ^ 

liis  election,  and  the  certificates  were  then  returned  to  them,  as  their  indemnity, 
it  was  held  that  the  company  was  bound  to  deliver  the  bonds,  notwithstand- 
ing the  treasurer  had  entered  the  shares  in  the  books  of  tlie  company  as  the 
property  of  the  contractor,  and  they  had  in  consequence  been  .sold  on  execution 
against  him.  Jones  v.  Portsmouth  &  Concord  Railroad  Co.,  :V2  N.  II.  '^\{.  A 
contractor  who  agrees  to  take  a  portion  of  his  pay  in  thi'l>ondsof  the  company, 
has  no  such  interest  in  any  question,  in  regard  to  their  validity,  as  will  j>re- 
vent  a  court  of  equity  from  enjoining  those  of  a  county,  which  liad  been  de- 
livered to  the  company  without  a  proper  compliance  with  the  conditions  of  the 
statute  under  wliich  the  subscription  was  made,  the  contractor  liaving  had 
knowledge  of  the  facts  from  (he  first.  Mercer  County  v.  Pittsburgh  &  Erie 
Kailroad  Co.,  27  Penn.  St.  3^0. 

^  Jones  V.  Chamberlain,  :'.0  Vt.  lOH. 

1  Boodv  r.  Uullaud  l^c  Burlin-ton  Kailroad  Co..  21  Vt.  CfiO. 

[♦430-M41] 


454  CONSTRUCTION   OP  RAILWAYS.  [PART   IV. 

*  3.  But  where  it  appeared  that  the  company  were  accustomed 
to  make  monthly  payments  to  their  contractors,  upon  the  estimates 
of  the  engineer,  at  the  end  of  eacli  month,  and  that  they  had  so 
dealt  with  the  plaintiff,  it  was  held  that  this  must  be  considered 
the  rule  of  payment  under  the  contract,  established  by  mutual 
consent  and  binding  upon  the  parties.^ 

4.  A  contract  to  build  "  riprap  "  wall  for  fifty  cents  a  cubic  yard 
in  the  absence  of  proof  of  any  general  usage  or  uniform  custom 
which  could  control  the  mode  of  measurement,  was  held  to  imply 
payment  by  the  cubic  yard  after  the  wall  was  constructed.^  (a) 


SECTION   XIX. 

Remedy  on  Contracts  for  Railway  Construction. 
1.  Kecovery  on  general  counts.  |  2.  Amount  and  proof  governed  by  contract. 

§  123.  1.  It  is  a  familiar  principle  of  law  applicable  to  con- 
tracts for  the  performance  of  work  and  labor,  that  if  the  work  is 
done  so  that  nothing  more  remains  but  payment,  there  is  no  ne- 
cessity of  declaring  specially  upon  the  contract,  but  the  recovery 
may  be  had  under  the  general  counts ;  and  it  will  make  no  differ- 
ence in  this  respect  that  it  was  not  done  within  the  time  pre- 
scribed by  the  contract,  if  the  work  has  been  accepted  by  the 
other  party,  or  the  time  for  performance  extended  by  such  party, 
or  the  work  has  been  done  upon  some  permanent  property  of  the 
other  party,  as  in  the  case  of  building  a  railway.^  (a) 

2.  But  ordinarily  the  contract  will  govern  as  to  price  and  other 
incidents,  so  far  as  it  can  be  traced.  But  where  the  party  for 
whom  the  labor  is  performed  wilfully  hinders  and  obstructs  the 
progress  of  the  work,  it  has  been  held  he  was  liable,  as  upon  a 
quantum  meruit}     But  in  such  case  the  party  must  prove  the  per- 

2  Wood  V.  Vermont  Central  Railroad  Co.,  24  Yt.  608. 
1  Merrill  v.  Ithaca  &  Owego  Railroad  Co.,  16  Wend.  586;  s.  c.  2  Am. 
Railw.  Cas.  421. 

(a)  See  Fish  v.  Wolfe,  50  Iowa,  636.  v.  San  Paulo  Railway  Co.,  Law  Rep. 

(a)  What  is  a  sufficient  pleading  of  8  Ch.   Ap.  597;  Clark  v.  White,   59 

the  performance  of  conditions.  Sharpe  Ind.  435. 
[*442] 


§123a.] 


MECHANIC'S   LIKX. 


4o;j 


formancc  of  the  labor,  by  sucli  proof  as  would  Ijc  competent  in  an 
action  on  the  special  contract,  and  cannot  treat  the  dealing  as  if 
it  had  been  matter  of  account  from  the  hrst.^ 


♦SECTION  XX. 


Mechanic's  Lien. 


1,  2.  Such  lien  cannot  exist  in  regard  to 
a  railway. 


(a)  Matter  now  generally  regulated 
by  statutes  giving  liens. 


§  123  a.  1.  It  has  been  considered  that  although  a  jmblic  rail- 
way may  come  within  the  literal  import  of  the  terms  used  in  a 
statute,  to  secure  material-men  and  laborers,  by  what  is  denomi- 
nated a  mechanic's  lien  upon  "buildings  or  other  improve- 
ments," yet  that  the  public  have  such  an  interest  in  jjublic 
works  of  this  character,  that  it  cannot  reasonably  be  presumed 
that  such  terms  were  intended  to  include  the  bridges  and  culverts 
upon  the  line  of  a  public  railway.^  (a) 

^  Dunn  V.  North  Mis.souri  Railroad  Co.,  24  ]\Io.  403.  See  McAulay  r. 
Western  Vermont  Railroad  Co.,  33  Vt.  311;  s.  c.  1  Redf.  Am.  Railw.  Cas. 
245. 


(a)  To  like  effect  are  Graham  i\ 
Mount  Sterling  CoalroadCo.,  14  Hu.sh, 
425;  Rutherfoordy.  Cincinnati  &  Ports- 
mouth Railroad  Co.,  35  Ohio  St.  559, 
and  other  cases.  But  contra,  Botsford 
V.  New  Haven,  Middletown,  &  Willi- 
mantic  Railroad  Co.,  41  Conn.  4.")4. 
And  the  matter  is  now  regulated  in 
many  of  the  states  by  statute,  under 
which  sub-contractors,  laborers,  &c. 
have  a  lien.  For  the  persons  for 
■whom,  and  the  circumstances  under 
which  liens  on  such  property  exist, 
and  for  the  proceedings  necessary 
under  tlie  various  statutes  to  perfect 
and  enforce  them,  see  the  statutes. 
But  as  to  limitations,  see  Arbuckle  i'. 
Illinois  Midland  Railway  Co.,  81  Til. 
429;  Cherry  v.  North  &  South  Rail- 
road Co.,  G5  Ga.  G33.      As  to  priori- 


ties between  such  lions,  other  incum- 
brances, subsequent  purchasers,  &c., 
see  Removal  Ca.ses,  100  U.  S.  457;  Fox 
V.  Seal,  22  Wal.  424;  Brooks/-.  Rail- 
way Co.,  101  U.  S.  443  ;  Pear  r.  Bur- 
lington,  Cedar  Rapids,  &  ^linncsota 
Railway  Co.,  48  Iowa,  G19;  Sliamokin 
Valley  &  Pottsville  Railroad  Co.  r. 
:Malonc,  85  Penn.  St.  25;  Coe  v.  New 
Jersey  Midland  Railway  Co.,  31  N.  J. 
Eq.  105;  Tommey  t?.  Spartanburg  & 
Asheville  Railroad  Co  ,  7  Fed.  Rep. 
429;  Tyrone  &  Clearfield  Railway  Co. 
V.  Jones,  79  Penn.  St.  CD  ;  Woo*ls  v. 
Pittsburg,  Cincinnati,  &  St.  Ix»uis 
Railway  Co.,  3  Am.  &  Eng.  Railw. 
Cas.  525.  As  to  registration,  &c.,  for 
purposes  of  notice,  see  Delaware  Rail- 
road Construction  Co.  v.  Pavciii>ort  & 
St.  Paul  Railway  Co.,  4(5  Iowa.  406  ; 
[M43] 


456 


CONSTRUCTION    OP   RAILWAYS. 


[part    IV. 


2.  The  language  of  Scott,  J.,  shows  the  ground  of  the  decision. 
"  Althougli  railway  companies  in  some  respects  resemble  private 
corporations,  yet  as  they  are  organized  for  the  public  benefit,  the 
state  takes  a  deep  interest  in  them,  and  regards  them  as  matters 
of  public  concern.  The  establishment  of  this  railway  is  regarded 
as  a  public  work  established  by  public  authority,  intended  for  the 
public  use  and  benefit."  The  learned  judge  argues,  that  such  a 
lien  to  be  effectual  must  be  liable  to  defeat  the  object  of  the  work, 
and  therefore,  and  as  the  legislature  have  provided  a  specific 
remedy  for  laborers,  it  is  not  to  be  supposed  that  a  mechanic's 
lien  also  exists  in  regard  to  the  structures  on  the  works. 


SECTION    XXI. 


Remedies  on  behalf  of  Laborers  and  Sub-contractors. 


1.  Sub-contractors  not  bound  by  stipula- 

tions of  contractor. 

2.  Laborers  on  public  works  have  a  claim 

against  the  company. 


But  a  sub-contractor  cannot  maintain 
an  action  against  the  proprietor  of 
the  works,  though  his  employe's 
may. 


§  123  b.  1.  A  sub-contractor  who  has  completed  his  work  to 
the  acceptance  of  the  engineers  appointed  to  pass  upon  its  suffi- 
ciency, is  entitled  to  recover  of  the  contractor  the  sum  retained 
upon  his  *  estimates,  as  security  for  the  completion  of  the  work, 
notwitlistanding  any  deficiency  in  the  performance  of  the  con- 


Morgan  V.  Chicago  &  Alton  Railroad 
Co.,  76  Mo.  161 ;  Boston  v.  Chesapeake, 
&  Ohio  Railroad  Co.,  12  Am.  &  Eng. 
Railw.  Cas.  263;  Hale  v.  Burlington, 
Cedar  Rapids,  &  Northern  Railway 
Co.,  13  Fed.  Rep.  203;  Sampson  v. 
Buffalo,  New  York,  &  Philadelphia 
Railway  Co.,  13  I  Inn,  280;  Lyon  v. 
New  York  &  New  England  Railroad 
Co.,  127  Mass.  101.  As  to  liens  of 
sub  contractors,  see  Cairo  &  St.  Louis 
Railroad  Co.  i'.  Watson.  85  111.  531; 
Same  r.  Canble,  4  Brad.  133;  Row- 
land V.  Centreville  Railroad  Co.,  11 
Am.  &  Eng.  Railw.  Cas.  47.  The 
[*444] 


sub-contractor,  like  the  laborer,  has 
no  lien  for  more  than  is  due  his  im- 
mediate employer.  Lumbard  r.  Syra- 
cuse, Binghamton,  &  New  York  Rail- 
road Co.,  55  N.  Y.  491;  Utter  v. 
Crane,  37  Iowa,  631;  Boltomley  r. 
Port  Huron  &  Noithwestern  Railway 
Co.,  44  Mich.  542.  As  to  the  neces- 
sity for  a  settlement  of  the  claim  which 
is  the  foundation  of  the  lien,  or  of  no- 
tice to  the  owner,  see  Brooks  v.  Rail- 
way Co.,  101  U.  S.  443;  Bundy  r. 
Keokuk  &  DesMoines  Railroad  Co.. 
49  Iowa,  207;  Railway  Co.y.  Cronin. 
38  Ohio  St.  122. 


§123('.]  CONIITIONS    IN    CHARTER    AND    KLECTION.  4oT 

tractor,  whereby  he  is  himself  unable  to  recover  such  deficiency 
of  the  company.^ 

2.  l>y  statute  in  many  of  the  states,  the  workmen  upon  a  rail- 
way, although  in  the  employment  of  the  contractoi-,  have  a  claim 
for  any  arrears  of  wages,  not  exceeding  a  certain  jjerir^d,  upon  the 
company,  and  this  provision  has  been  held  to  extend  equally  to 
workmen  employed  by  sub-contractors.^  (a)  And  the  provisions 
of  this  statute,  being  only  a  matter  of  general  j)olice,  will  be 
equally  binding  upon  all  railway  companies,  whether  chartered 
before  or  after  the  passing  of  the  statute.^ 

3.  But  the  sub-contractor  himself  cannot  pass  by  his  immediate 
employers  and  maintain  an  action  against  the  principal  proj)rietor 
of  the  work.-^ 


SECTION    XXII. 

Conditions  in  Charter  and  Election. 

1.  Such  conditions  must  be  performed,  I  2    Company  bound  by  its  election, 
waived,  or  extended.  I 

§  123  c.  1.  There  have  commonly  been  some  limitations  an- 
nexed to  the  exercise  of  the  powers  conferred  upon  railway  com- 

1  r.Iair  V.  Corby,  29  Mo.  480,  48G. 

-  Grannalian  v.  Hannibal  &  St.  Jcseph  Railroad  Co.,  30  Mo.  51G.  Sec 
also  ]\IcCIuskoy  r.  Cromwell,  U  N.  Y.  5!»3;  Kent  r.  New  York  Central  Rail- 
road Co.,  12  N.  Y.  628;  Peters  v.  St.  Louis  &  Iron  Mountain  Railroad  Co.,  23 
Mo.  107. 

8  Branin  v.  Connecticut  &  Passumpsic  Rivers  Railroad  Co.,  31  Vt.  214; 
Lake  Erie,  Wabash,  &  St.  Louis  Railroad  Co.  v.  Eckler,  13  Ind  07.  See  Bos- 
well  v.  Townsend,  37  Barb.  2(Jo. 

(a)   And   so  now   in   many  of   the  Co.,  55  X.  Y.  101;  Bottomley  r.  Port 

states  they,  as  well  as  sub-contractors  Huron  &  Northwestern   Haihvay  Co., 

in  certain  cases,  have  a  lien  by  statute.  11  Mich.  542.     Engineers  held  not  to 

.\s  to  the  grounds  and  incidents  of  such  be  laborers.    Peck  v.  Rush,  10  Am.  & 

liens,  see  supra,  §  122.    But  the  laborer,  Eng.  Railw.  Cas.  612.    And  .see  Penu- 

like  the  sub-contractor,  has  no  rcMnedy  sylvania  &  Delaware  Railroad  Co.  v. 

against  the  company  for  more  than  is  Leuffer,  81  Penn.  St.  168.    So  of  coii- 

due  from  the  cotnpany  to  his  immodi-  tractors  and  sub-contractors.    Ciiicago 

ate   employer.       Utter    v.    Crane,    (!7  &  Xortheastern  Railroad  Co.  r.  Stur- 

lowa,    631;     Lumlvard    v      Syracu.se,  gis,  44  Mich.  538.     As   to  the  rights 

Binghamton,    &   New   York  Railroad  of  laborers  against  the  company  under 

[•444] 


458  CONSTRUCTION   OP  RAILWAYS.  [PART   IV, 

panics ;  as,  that  the  building  of  the  road  should  be  begun  before 
some  prescribed  day,  and  ordinarily  a  certain  amount  of  money 
expended,  and  the  road  completed  and  in  operation  within  some 
other  prescribed  time.  These  conditions  must  of  course  be  fairly 
and  justly  complied  with,  or  else  the  time  extended  by  the  legis- 
lature, which  may  be  implied  from  an  additional  grant  of  power, 
as  well  as  from  an  express  statute  for  that  specific  purpose.^  (a)  / 
2.  As  a  general  rule  the  practical  construction  which  the  com- 
pany give  of  its  own  charter,  by  the  location  and  construction  of 
its  road,  will  be  held  binding  upon  the  company.  And  where  the 
company  have  an  election  or  discretion  as  to  the  route  on  which 
it  will  build  its  road,  its  actual  construction  will  be  regarded  as 
having  exhausted  such  right,  and  it  cannot  thereafter  adopt  a 
new  route,  although  coming  within  the  terms  of  the  charter  as 
originally  granted.^ 

1  Foster  v.  Fitch,  36  Conn.  236. 

2  Morris  &  Essex  Railroad  Co.  v.   Central  Railroad  Co.,  2  Vroom,  205; 
Cleveland  &  Pittsburgh  Railroad  Co.  v.  Speer,  56  Penn.  St.  325. 

the  Mass.  Statute  of  1873,  see  Parker         (a)  Performance  by  a  lessee  held 

V.    Massachusetts    Railroad   Co.,   115  insufficient.    /« re  Brooklyn,  Winfield, 

Mass.    580;  Hart   v.  Boston,  Revere  &   Newtown   Railway  Co.,    19  Hun, 

Beach,    &    Lynn   Railroad   Co.,    121  314. 
Mass.  510. 
[*444] 


§  124.] 


EXCESSIVE   TOLLS,    FAKE,   AND    FUEIGUT. 


459 


♦CHAPTER  XVI. 


EXCESSIVE  TOLLS,   FARE,   AND   FREIGHT. 


1.  English  companies  sometimes  created 

for  maintaining  road  only. 

2.  Where  excessive  tolls  taken  may  be 

recovered  back. 

3.  So  also  may  excessive  fare  and  freight. 

4.  Under  English  statute,  packed  parcels 

must  be  rated  in  mass. 

5.  Nature    of    railway    traffic    requires 

unity  of  management  and  control. 

6.  Tolls  on  railways  almost  unknown  in 

this    country.      Fare    and    freigiit 
often  limited. 

7.  Guaranty   of  certain  profit  on  invest- 

ment lawful. 

8.  Restriction   of  freight  to  certain  rate 

per  ton  extends  to  whole  line. 


9.  Company,  in  suing  for  tolls  due,  need 
not  describe  tliem  as  sucii. 

10.  Mode  of  establisliing  tariff  rates,  and 

requisite  proof. 

11.  Provision  in  a  charter  for  payment 

of  a  certain  tonnage  to   tiie  state 
only  a  mode  of  taxation. 

12.  Wiiere  a  company  is  allowed  to  take 

tolls  on  sections  of  its  road,  each 
section  is  a  distinct  work. 

13.  14.  Discussion  of  cases  in  New  York 

in  regard  to  the  difference  between 
fares   taken  in   tlie   cars  and   fares 
taken  at  the  stations. 
15.  Fares  fixed  by  statute  are  payable  in 
legal  tender  notes. 


§  124.  1.  By  the  English  statutes,  companies  are  created  who 
own  the  railway,  stations,  &c.,  merely,  and  wlio  are  empowered  to 
demand  certain  tolls  of  other  persons,  or  companies,  for  the  use 
of  such  road. 

2.  In  such  cases,  if  illegal  tolls  arc  demanded  and  paid,  the 
excess  may  be  recovered  back,  as  money  had  and  received,  to  the 
use  of  the  person  paying  it,  upon  the  general  principles  of  law 
applicable  to  the  subject  of  tolls  and  the  demand  and  receipt  of 
excessive  tolls.^  (a)  Where  the  English  statute  ^  gave  the  com- 
pany the  right,  where  any  person  should  fail  to  pay  the  toll  due 

1  Fearnley  v.  IMorloy,  5  R.  &  C.  25.  Soe  also  tliis  subject  very  extensively 
examined  in  Centre  Turnpike  Co.  r.  Smith,  12  Vt.  212;  in/rn,  §  143.  Tolls 
are  a  payment  for  pas.sing  along  the  line  of  the  railway,  and  .'should  be  received 
with  reference  to  the  number  of  carriages  passing.  Simpson  v.  Denison,  10 
Hare,  51 ;  s.  c.  13  Eng.  L.  &  Eq.  359. 

^  Statute  8  &  9  Vict.  c.  20,  §  97. 


(a)  What  are  tolls. 


McKee  v.  Grand  Rapids  Railway  Co.,  41  IMich.  274. 

[*445] 


4G0  EXCESSIVE   TOLLS,   FARE,   AND    FREIGHT.  [PART   IV. 

upon  any  carriage,  to  detain  and  sell  the  same,  it  was  held  incum- 
bent upon  the  company  first  to  demand  the  sum  due  for  toll,  and 
that  this  Avas  a  condition  precedent  to  the  right  to  sell  under  the 
statute.^  It  was  also  considered  here  that  a  charge  for  transport- 
ing carriages  back  is  not  a  toll,  but  something  which  may  be  com- 
pensated by  special  agreement  between  the  parties  ;  and  if  it  be 
demanded  as  part  of  the  *  toll,  being  an  illegal  claim  as  such,  it 
vitiates  the  entire  demand  and  renders  it  illegal. 

3.  And  the  same  rule  has  been  extended  to  the  recovery  of 
money  overpaid  upon  an  exorbitant  and  illegal  demand  of  freight 
or  fare  by  railways.  And  the  recovery  may  be  had,  although  the 
person  paying  it  did  not  tender  any  specific  sum  as  due,  and  al- 
though a  portion  of  the  overcharge  was  on  account  of  what  was 
claimed  to  be  due  another  company.* 

4.  And  under  the  English  statutes,  packed  parcels  of  the  same 
class  are  required  to  be  rated  in  mass.^ 

5.  Most  of  the  business  upon  public  railways,  in  this  country, 
and  in  England,  at  the  present  time,  is  almost  of  necessity  trans- 
acted by  the  companies  themselves.  The  very  nature  of  the 
business  seems  to  require  absolute  unity  in  the  management  and 
control  of  the  traffic,  and  especially  in  this  country,  where  a  large 
proportion  of  the  roads  are  operated  upon  a  single  track,  requir- 
ing the  utmost  watchfulness  and  circumspection  to  avoid  colli- 
sions. We  suppose  the  idea  of  operating  a  railway  with  large 
traffic,  in  England,  upon  a  single  track,  would  be  regarded  as  too 
glaring  an  absurdity  to  be  seriously  entertained,  although  they 
have  some  unimportant  single  track  railways.  But  in  this  country 
it  is  rather  the  rule  than  the  exception,  and  many  of  the  conti- 
nental railways  in  Europe  have  only  a  single  track. 

3  Field  r.  Newport,  Abergavenny,  &  Hereford  Railway  Co.,  3  H.  &  N.  400. 

*  Parker  r.  Bristol  &  Exeter  Railway  Co.,  6  Exch.  702;  s.  c.  6  Railw.  Cas. 
776.  See  also  Snowden  r.  Davis,  1  Taunt.  359;  Atlee  v.  Backhouse,  3  M.  & 
W.  633;  and  Spry  v.  Emperor,  6  M.  &  W.  639,  where  the  general  subject  is 
discussed.  In  Parker  r.  Great  Western  Railway  Co.,  3  Railw.  Cas.  .563,  the 
very  point  is  decided.  Crouch  v.  London  &  Northwestern  Railway  Co.,  2  Car. 
&  K.  789;  Crouch  v.  Great  Northern  Railway  Co.,  25  Eng.  L.  &  Eq.  449. 

5  Parker  r.  Great  Western  Railway  Co.,  11  C.  B.  545;  s.  c.  8  Eng.  L.  & 
Eq.  426.  This  subject  of  overcharge  and  the  right  to  recover  back  the  excess, 
is  extensively  discus.sed  in  this  case,  and  in  Edwards  v.  Great  Western  Rail- 
way Co.,  11  C.  B.  588;  s.  c.  8  Eng.  L.  &  Eq.  447;  Crouch  v.  Great  Northern 
Railwav  Co.,  9  Exch.  556;  s.  c.  25  Eng.  L.  &  Eq  449. 
[*446] 


§ll!l.]  EXCESSIVE   TOLLS,    FAItE,    AND    I'UEKWIT.  4G1 

0.  The  matter  of  tulls  upon  railways  is  a  thing  ahnost  unkn<nvn 
in  this  country,  and  very  little  practised  anywhere  at  present. 
IJut  the  English  special  acts,  and  the  American  railway  charters, 
very  often  (ix  the  maximum  of  freight  and  fare  which  it  shall  l»e 
lawful  for  the  company  to  receive,  and  if  tulls  arc  allowed  to  be 
taken  of  other  companies  or  persons,  these  also  are  limited. 

*  7.  A  guaranty  of  a  certain  amount  of  profit  to  the  company, 
by  other  companies,  in  consideration  of  the  right  to  use  the  track 
of  such  com{)any,  is  lawful.*" 

8.  The  restriction  in  the  charter  of  the  Camden  &  Amboy  Rail- 
way of  freight  to  eight  cents  per  ton  per  mile,  extends  to  the  whole 
distance  of  the  line  of  said  company,  although  some  of  it  is  l)y 
water,  and  includes  the  auxiliary  roads  through  New  Di'unswick 
and  Trenton.' 

9.  In  an  action  to  recover  tolls  due  to  a  railway  it  is  not  neces- 
sary to  describe  the  dues  as  tolls.  Any  description  which  sulli- 
ciently  identifies  the  nature  of  the  service  for  which  compensation 
is  demanded,  is  all  that  is  required.^ 

10.  Freights  upon  a  railway  may  be  established  by  the  directors, 
or  by  their  agents ;  and  their  assent  will  be  presumed,  if  nothing 
appear  to  the  contrary.^  And  where  the  directors  are  required  to 
establish  freights,  and  they  do  establish  a  printed  tariff,  that  is  to 
be  regarded  as  the  original ;  and  where  copies  of  such  tariff  are 
required  to  be  posted  at  the  depots  or  stations  of  the  com])any, 
that  affords  sulhcient  excuse  for  the  absence  of  such  coj)ics  to 
justify  the  admission  of  secondary  evidence.^ 

11.  A  provision  in  the  charter  of  a  railway  company  that  it  shall 
pay  a  certain  tonnage  to  the  state  upon  all  freight  transported  by 

*  Great  Northern  Railway  Co.  v.  South  Yorkshire  Railway  Co.,  9  Exch.  G12. 
"   Camden  &  Ainboy  Railroad  Co.  v.  Brigc^s,  1  Zab.  JOO. 

Where  a  company  leased  its  line  to  another,  at  a  certain  rate,  for  all  min- 
erals, &c.,  transported,  it  was  held,  that  the  owners  of  minerals  transportoJ 
could  not,  by  injunction,  compel  the  lessees  to  transport  minerals  on  the  terms 
agreed  with  the  other  company,  the  latter  being  a  rent  merely,  and  nut  a  rate 
of  toll  or  freight.  Finnic  v.  Glasgow  &  Southwestern  Railway  Co.,  '-*  Maccj. 
Ap.  Cas.  177. 

*  Manchester  &  Lawrence  Railway  Co.  r.  Fisk,  :)-i  X.  II.  •J!»7.  Where  a 
railway  company  was  limited  by  charter  to  a  "  toll  not  exceeding  four  cents 
per  ton  per  mile  on  merchandise  and  two  cents  a  mile  on  each  pa.sscnger"  it 
was  held  that  the  company  might  charge  for  transportation  in  addition  to  the 
toll.     Boyle  v.  Philadelphia  &  Reading  Railroad  Co.,  51  Penn.  St.  310. 

[M47] 


462  EXCESSIVE   TOLLS,    FARE,   AND    FREIGHT.  [PART   IV. 

it,  is  only  a  mode  of  taxation,  and  is  not  in  conflict  with  any  pro- 
vision of  the  United  States  Constitution  securing  to  Congress  the 
exclusive  power  of  regulating  commerce  with  foreign  nations  and 
among  the  states,  and  prohibiting  the  states,  without  the  consent 
of  Congress,  from  levying  duties  on  imports  and  exports.  The 
company,  by  accepting  the  charter  containing  such  a  provision, 
virtually  made  an  express  contract  to  perform  it,  and  have  no 
just  cause  of  complaint,  treating  the  provision  either  as  a  law  or 
a  contract.^ 

*  12.  And  a  provision  in  the  charter  of  a  railway  company  or 
other  road  company,  that  it  may  demand  tolls  upon  any  particu- 
lar portion  of  its  road  as  soon  as  completed  and  in  operation,  has 
been  construed  to  create  such  portion  a  distinct  public  work,  not 
liable  to  be  affected  by  failure  to  complete  the  remainder  of  the 
work  embraced  in  the  same  charter.  But  if  the  work  is  not  done 
in  a  proper  manner,  that  will  be  a  cause  of  forfeiture  not  cured 
by  the  provision  allowing  tolls  to  be  levied  upon  distinct  portions 
of  the  entire  line.^^  But  it  is  here  left  in  doubt  whether  such 
defect  in  construction  will  operate  to  forfeit  the  entire  road  or 
only  those  sections  where  such  defects  occur, 

13.  We  have  discussed  the  question  of  railway  companies  mak- 
ing a  discrimination  between  fares  paid  in  the  cars  and  at  their 
stations.^^  Under  the  New  York  statute,  which  allows  of  this 
discrimination  only  where  the  company  keep  their  ticket  office 
open,  it  was  held  the  company  could  only  make  that  discrimina- 
tion in  the  cases  specified  in  the  statute,  and  not  in  other  cases, 
even  if  the  passenger  took  the  cars  after  midnight,  the  company 
being  required  to  keep  the  ticket  office  open  only  until  nine 
o'clock,  p.  M.12 

14.  This  question  is  still  further  discussed  in  a  later  case  ;  '^ 
but  the  questions  turned  chiefly  upon  the  construction  of  the  stat- 
ute in  force  there,  I'equiring  the  company  to  keep  all  their  ticket 
offices  open  one  hour  before  the  trains  start,  except  between  9 

9  Pennsylvania  Railroad  Co.  v.  Commonwealth,  3  Grant  Pa.  128.     As  to 
the  right  to  tax  .shares  in  a  corporation  for  county  purposes,  see  Lycoming 
County  V.  Gamble,  47  Penn.  St.  106. 
"  People  V.  Jackson  &  Michigan  Plank- Road  Co.,  9  Mich.  285. 
"    Supra,  §  28. 

"  Chase  v.  New  York  Central  Railroad  Co.,  26  N.  Y.  523. 
"    Nellis  V.  New  York  Central  Railroad  Co.,  30  N.  Y.  505. 
[*448] 


§  124.]  EXCESSIVE    TOLLS,    FARE,    AND    FREIGHT.  403 

P.M.,  and  5  a.  m.,  when  they  are  only  required  to  do  so  at  Utica 
and  otlier  prhicipal  oflices,  and  which  also  enacts,  that  if  any  per- 
son sliall,  at  any  station  where  a  ticket  office  is  kept  open,  enter 
the  cars  as  a  passenger,  without  having  first  purcliased  a  ticket,  it 
shall  he  lawful  for  the  company  to  reciuirc  five  cents  extra  fare  of 
such  person  ;  and  it  was  decided  that  the  extra  fare  could  only  be 
demanded  where  the  company  kept  a  ticket  office  open.  And  it 
will  make  no  difference  that  the  passenger  entered  the  cars  at  an 
liour  when  the  ticket  offices  were  required  to  be  kept  open,  if  such 
was  not  the  fact.  It  was  also  held,  that  the  company,  by  so  de- 
manding *  and  receiving  the  five  cents  extra  fare  when  not  en- 
titled to  receive  it,  became  liable  to  the  penalty  of  -^50,  under  the 
statute,  for  taking  more  fare  than  allowed  by  law. 

15.  Where  the  company  is  restricted  by  statute  to  the  charge  of 
two  cents  fare  per  mile,  that  will  not  justify  their  demanding  fares 
in  gold,  or  its  equivalent  in  currency.  A  fare  is  a  debt,  within 
tlie  terms  of  the  act  of  Congress  creating  the  legal  tender  notes, 
and  is  payable  in  that  currency,  as  much  as  any  other  debt.^^ 

^*  Lewis  V.  New  York  Central  Railroad  Co.,  49  Barb.  330. 

[*449] 


PART  y. 

THE   LAW  OF  LIABILITY  FOR  FIRES;  INJURIES 
TO  DOMESTIC   ANIMALS;  FENCES. 


VOL.  1.  — 30 


PART  V. 

THE   LAW  OF   LIABILITY   FOR  FIRES;  INJURIES 
TO   DOMESTIC   ANIMALS;  FENCES. 


♦CHAPTER    XVIL 


LIABILITY    FOR   FIRES,    COMMUNICATED    BY   COMPANY  S    ENGINES. 


1,  3.  Fact   that  fires  are  communicated 

evidence  of  negligence. 

2.  This  was   at  one  time  questioned  in 

England. 

4.  English  companies  feel  bound  to  use 

precautions  against  fire. 

5.  Rule  of  evidence,  in  this  country,  more 

favorable  to  companies. 

6.  But  tlie  company  is  liable  for  damage 

by  fire  caused  by  want  of  care  on 
its  part. 

7.  One  is  not  precluded  from  recovery, 

by  placing  buildings  in  an  exposed 
situation. 

8.  Where   insurer  pays  damages   on  in- 

sured property,  he  may  have  action 
against  company. 


9.  Where  company  made  liable  for  in- 
jury to  all  property,  it  is  allowed 
to  insure. 

10.  Construction  of  statutes  making  com- 

panies liable  for  loss  by  fires. 

11.  Extent  of  responsibility  of  insurer  of 

goods,  to  company. 

12.  Construction  of  statute  as  to  engines 

whicli  do  not  consume  smoke. 

13.  Construction   of  Massachusetta  stat- 

ute and  mode  of  trial. 

14.  15.  For  what  acts  railway  companies 

may  become  responsible  wiiliout 
any  actual  negligence. 
10,  17.  Companies,  when  responsible  for 
fires  resulting  from  otlicr  fires 
caused  by  them.  Late  cases  not 
sound. 


§  125.  1.  In  the  English  courts  it  seems  to  have  been  settled, 
as  early  as  the  year  1846,^  upon  great  consideration,  tliat  the  fact 
of  premises  being  fired  by  sparks  emitted  from  a  passing  engine 
is  prima  facie,  evidence  of  negligence  on  the  part  of  the  company, 
rendering  it  incumbent  upon  them  to  show  that  some  precautions 

1  Piggot  V.  Eastern  Counties  Railway  Co  ,  n  C.  B.  '229;  Lackawanna  & 
Bloomsburg  Railroad  Co.  v.  Doak,  52  Penn.  St.  o79. 

[*450] 


408  LIABILITY    FOR   FIRES   BY   ENGINES.  [PART   V. 

liad  been  adopted  by  them  reasonably  calculated  to  prevent  such 
accidents,  (a) 

2.  In  an  earlier  case,  where  the  facts  were  reported  by  the 
judge  at  Nisi  Prius,  for  the  opinion  of  the  full  court,  that  a  stack 
of  beans  near  the  track  of  the  railway  was  fired  and  consumed 
by  sparks  from  the  company's  engine,  of  the  ordinary  construc- 
tion and  used  in  the  ordinary  mode,  the  court  said  the  facts 
reported  did  not  show,  necessarily,  either  negligence  or  no  negli- 
gence.    That  was  a  question  for  the  jury .2 

3.  But  the  court  in  the  case  of  Piggot  v.  Eastern  Counties  Rail- 
way, went  much  further.  Tindal,  C.  J.,  said  :  "  The  defendants 
*  are  a  company  intrusted  by  the  legislature  with  an  agent  of  an 
extremely  dangerous  and  unruly  character,  for  their  own  private 
and  particular  advantage  ;  and  the  law  requires  of  them,  that  they 
shall,  in  the  exercise  of  the  rights  and  powers  so  conferred  upon 
them,  adopt  such  precautions  as  may  reasonably  prevent  damage 
to  the  property  of  third  persons,  through  or  near  which  their  rail- 
way passes.  The  evidence  in  this  case  was  abundantly  sufficient 
to  show  that  the  injury  of  which  the  plaintiff  complains  was  caused 
by  the  emission  of  sparks  or  particles  of  ignited  coke,  coming  from 
one  of  the  defendants'  engines ;  and  there  was  no  proof  of  any 
precaution  adopted  by  the  company  to  avoid  such  a  mischance. 
I  therefore  think  the  jury  came  to  a  right  conclusion,  in  finding 
that  the  company  were  guilty  of  negligence,  and  that  the  injury 
complained  of  was  the  result  of  such  negligence.  There  are 
many  old  authorities  to  sustain  this  view  ;  for  instance,  the  case  of 
Mitchil  V.  Alestree,  1  Vent.  295,  for  an  injury  resulting  to  the 
plaintiff  from  the  defendant's  riding  an  unruly  horse  in  Lincoln's 
Inn  Fields  ;  that  of  Bayntinc  v.  Sharp,  1  Lutw.  90,  for  permitting 
a  mad  bull  to  be  at  large  ;   and  that  of  Smith  v.  Pelah,  2  Stra. 

2  Aldridge  v.  Great  Western  Railway  Co.,  3  M.  &  G.  515;  2  Railw.  Gas.  852. 

(a)  In  ^Massachusetts,  under  Gen.  licensee.  An  action  may  be  main- 
Sts.  0.  63,  §  101,  a  lessee  company  is  tained  against  several  defendants  and 
liable  for  injuries  from  fires  caused  by  a  recovery  had  of  such  as  are  found 
its  engines.  Davis  v.  Providence  &  liable.  Indianapolis  &  St.  Louis  Rail- 
Worcester  Railroad  Co.,  121  Mass.  134.  road  Co.  v.  Hackenthal,  72  111.  612. 
So  in  Maine  under  Rev.  Sts.  c.  51,  For  destruction  of  a  meadow  by  fire, 
§  38,  the  lessor  is  liable.  In  Pittsburg,  the  measure  of  damages  is  the  cost 
Cincinnati,  &  St.  Louis  Railway  Co.  of  restoration.  Vermilya  v.  Chicago, 
V.  Campbell,  86  111.  443,  a  lessee  was  Milwaukee,  &  St.  Paul  Railroad  Co., 
held  liable  for  negligence  of  its  23  Am.  &  Eng.  Railw.  Cas.  108. 
[*451] 


§  12.").]  LIABILITY    FOR    FIRES    BY    ENGINES.  409 

12G4,  for  allowing  a  dog  known  to  be  accustomed  to  bite  to  go 
about  unmuzzled.  The  precautions  suggested  by  the  witnesses 
called  for  the  j)laintilT  in  this  case,  may  be  compared  to  the  nmz- 
zlo  in  the  case  last  referred  to.  The  case  of  Bcaulieu  v.  Finglam, 
in  the  Year-Books,  P.  2,  II.  4,  ful.  18,  pi.  5,  comes  near  to  this. 
There,  the  defendant  was  charged,  in  case,  for  so  negligently 
keeping  his  fire  as  to  occasion  the  destruction  of  the  plaintifiTs 
property  adjoining.  The  duty  there  alleged  was,  —  Square  cum 
secundum  legem  et  consuetudinem  regni  noslri  Anglice  hactenus 
obtentam,  quod  quilihet  de  eodem  regno  ignem  suum  salvo  et  secure 
custodiat,  et  custodire  teneatur,  ne  per  ignem  suum  damnum  aliquod 
vicinis  suis  eveniat.''  " 

4.  The  principle  of  this  case  seems  to  have  been  acquiesced  in 
by  the  railways  in  England,'*^  and  such  precautions  used,  as  *  to 
secure  the  engines  against  emitting  sparks.  In  this  last  case  it 
was  held  proper  evidence  to  go  to  the  jury  that  the  company's 
engines  had  before,  in  passing  along  the  line,  emitted  sparks  a 
sufficient  distance  to  have  done  the  injury  in  the  present  case,  as 
a  means  of  ascertaining  the  possibility  of  the  building  being  fired 
in  the  manner  alleged.  The  testimony  in  this  case  showed,  that 
the  danger  of  emitting  sparks  is  very  much  increased  by  overtask- 
ing the  engine,  and  that  it  may  be  altogether  avoided  by  shutting 
off  the  steam  in  passing  a  place  where  there  is  danger  from  sparks, 
or  that  the  danger  may  be  guarded  against  by  mechanical  precau- 
tions. The  subject  has  been  a  great  deal  discussed  in  more  recent 
English  cases.*     In  this  case  it  was  held  by  Bramwell,  B.,  at  the 

'  Ilainmon  v.  Southeastern  Railway  Co.,  Maidstoue  Spring  Assizes,  1S45, 
before  Lord  Denman,  C  J.,  for  the  destruction  of  farm  buildings,  including 
a  thatched  barn,  by  sparks  emitted  from  the  defendants'  engines  in  pa,>^sing 
along  the  line  of  the  railway.  There  was  evidence  that  the  fire  was  so  caused, 
and  that  defendants'  engines  had  no  wire  guard,  or  perforated  plate,  to  pre- 
vent the  escape  of  the  sparks,  although  both  were  in  use  before  that  time. 
There  was  evidence  that  it  was  principally  where  the  engines  were  overtasked 
that  they  were  liable  to  emit  sparks.  His  Lordship  directed  the  jury  that  it 
lay  upon  the  plaintiff  to  establish  negligence;  that  they  were  to  consider  that 
the  plaintiff  might  have  saved  all  hazard  by  tiling  his  barn,  and  also  whether 
the  train  was  driven  too  fast.  The  plaintiff  had  a  verdict,  and  the  court  sub- 
sequently refused  a  new  trial.  Taylor  v.  Southeastern  Railway  Co.  was  tried 
at  same  term,  with  similar  proof  and  the  same  result.  "NValf.  Railw.  183,  181, 
and  notes.  See  also  Lackawanna  &  Bloomsburg  Railway  Co.  v.  Doak,  52 
Penu.  St.  379,  where  the  same  rule  is  adopted. 

*  Vaughan  v.  Taff-Vale  Railway  Co.,  3  H.  &  N.  743;  8.  c  5  H.  &  N.  679; 

[•452] 


470  LIABILITY    FOR   FIRES   BY   ENGINES.  [PART   V. 

jury  trial,  and  his  views  seem  to  have  been  sustained  by  the  Court 
of  Exchequer,  that  the  mere  fact  of  the  company  using  fire  as  a 
means  of  locomotion,  from  whicli  occasional  fires  will  be  communi- 
cated, even  with  the  utmost  care  to  prevent  it,  made  them  respon- 
sible for  damage  caused  thereby.  But  in  the  Exchequer  Chamber 
the  judges  seem  to  have  been  agreed,  that  the  legislature  having 
legalized  this  mode  of  locomotion,  it  could  not  subject  the  com- 
pany, while  pursuing  a  legal  business  in  a  legal  mode,  to  damage 
thereby  caused  to  others,  unless  through  some  degree  of  neglect. 
If  the  company  resort  to  all  known  precautions  against  fire,  they 
arc  not  liable. 

5.  But  in  this  country  it  must  be  confessed  the  rule  of  the 
liability  of  railways  for  damage  done  by  fire  communicated  by 
their  engines,  is  more  favorable  to  the  companies  than  in  England. 
It  seems  to  have  been  assumed,  in  this  country,  that  the  business 
of  railways  being  lawful,  no  presumption  of  negligence  arises  from 
the  fact  of  fire  being  communicated  by  their  engines.^  (6)     *  But 

s.  c.  6  Jur.  N.  s.  899.  See  also,  King  v.  Pease,  4  B.  &  Ad.  30,  on  the  author- 
ity of  which  the  preceding  case  was  decided  in  Exchequer  Chamber.  In  refer- 
ence to  the  decision  in  the  Court  of  Exchequer,  it  was  said  in  a  previous  edition 
of  this  book  that  it  was  going  further  than  any  just  principle  would  allow,  un- 
less the  defendant's  business  was  regarded  as  unlawful.  Infra,  pi.  11, 15,  and 
note.  The  doctrine  of  the  first  two  cases  cited  in  this  note  is  approved  in 
Hammersmith  Railway  Co.  v.  Brand,  Law  Rep.  4  H.  L.  171.  The  New  York 
Court  of  Appeals,  in  Steinweg  v.  Erie  Railway  Co.,  43  N.  Y.  123,  hold,  that 
railway  companies,  as  common  carriers,  are  bound  to  have  such  vehicles  and 
machinery  for  the  transportation  of  goods  as  the  improvements  known  to  prac- 
tical men  and  tested  by  practical  use  may  suggest,  but  not  to  take  every  pos- 
.sible  precaution  which  the  highest  scientific  skill  might  suggest,  nor  to  adopt 
any  mere  speculative  and  untried  improvement. 

^  Rood  V.  New  York  &  Erie  Railway  Co.,  18  Barb.  80;  Lyman  v.  Boston 
&  Worcester  Railroad  Co.,  4  Cush.  288;  Burroughs  r.  Housatonic  Railroad 
Co.,  15  Conn.  124.  In  this  case  the  court  compares  the  injury  to  that  of  fire 
communicated  by  sparks  from  the  chimney  of  a  dwelling-house.  Where  the 
statute  I'equires  the  company  to  show  that  the  fire  occurred  "  without  any  neg- 
ligence on  their  part,"  it  is  sufficient  to  show  that  its  engines  were  properly 
con.structed,  in  good  order,  and  had  the  usual  apparatus  for  preventing  the 
escape  of  sparks,  and  were  managed  by  discreet  persons.  Baltimore  &  Sus- 
quehanna Railroad  Co.  v.  Woodruff,  4  Md.  242. 

(b)   To  that  effect  are  Philadelphia  McCaig  r.  Erie  Railway  Co.,  8  Hun, 

&  Reading  Railroad  Co.  v.  Yerger,  73  599;  Ruffner  v.  Cincinnati,  Hamilton, 

Penn.  St.  121;  Toledo,  Peoria,  &  War-  &  Dayton  Railroad  Co  ,  34  Ohio  St. 

saw  Railway  Co.  v.  Parker,  73  111.  526;  96;  Babcock  v.  Chicago  &  Northwest- 

[*453] 


§  125.]  LIABILITY    FOR    FIRES   BY    ENGINES.  471 

after  other  probable  modes  of  accounting  for  the  fire  have  been  dis- 
proved, the  uinis  is  on  the  company  t(j  prove  that  the  fire  was  not 
communicak'd  by  the  cn^-incs  of  their  train  passing  at  the  time.*^ 

6.  In  tliis  country  it  has  been  held,  that  proof  that  sparks  have 
upon  other  occasions  been  emitted  and  caused  fires  along  the 
Hue  of  the  road,  is  not  admissible,  either  to  show  that  defendants' 
engine  caused  the  damage,  or  to  rebut  defendants'  proof  of  care 
and  diligence  in  using  their  engines.^  But  the  testimony  seems 
to  have  been  received  in  other  cases.^  (<?)  All  the  cases  upon  this 
subject  hold  railways  bound  to  the  exercise  of  care,  skill,  and  dili- 
gence, to  prevent  fires  being  communicated  in  this  mode,  and  make 
them  liable  in  case  of  damage  through  their  negligence.^  (tZ) 

«   Sheldon  v.  Hudson  River  Railroad  Co.,  U  N.  Y.  218. 

'  Baltimore  &  Susquehannah  Railroad  Co.  v.  Woodruff,  4  Md.  242;  infra, 
pi.  13. 

8  McCready  v.  South  Carolina  Railroad  Co.,  2  Strob.  35G;  Sheldon  v.  Hud- 
son River  Railroad  Co.,  14  N.  Y.  218;  s.  c  20  Barb.  220. 

*  Burroughs  v.  Housatonic  Railroad  Co.  15  Conn.  124;  Huyett  v.  Philadel- 
phia &  Reading  Railroad  Co.,  23  Penn.  St.  373.  The  jury  are  to  determine  the 
question  of  negligence.  Id.  The  company  is  bound  to  use  more  care  in  regard 
to  fires  in  a  very  dry  time,  or  where  property  is  very  much  exposed.  Id.  But  if 
there  is  no  restriction  on  the  company  in  that  respect,  it  may  place 'its  track 
and  stations  in  such  proximity  to  other  structures  as  it  deems  essential  to  its 
own  interests  and  the  public  good,  and  it  is  not  responsible  for  fires  caused  by 
its  engines  except  through  neglect  of  known  and  necessary  precautious.  Turn- 
pike Co.  t'.  Philadelphia  &  Trenton  Railroad  Co.,  54  Penn.  St.  345.  The  duty 
of  railway  companies  in  using  precautions  against  communicating  fires  by  its 
engines  is  here  extensively  discussed,  and  the  rule  laid  down,  that  the  most 
approved  pi'ecautions  and  those  in  most  extensive  use  must  be  resorted  to,  and 
that  the  engines  must  be  so  used  and  guarded  as  not  ordinarily  to  emit  sparks, 

ern  Railway  Co.,  11  Am.  &  Eng.  ginia  City  «&  Truckee  Railroad  Co.,  9 
Railw.  Cas.  63;  Palmer  r.  Missouri  Nev.  271 ;  Coale  r.  Hannibal  &  St.  Jo- 
Pacific  Railway  Co.,  76  Mo  217;  Gulf,  seph  Railroad  Co.,  60  Mo.  227;  Brown 
(.'olorado,  &  Santa  Fe  Railway  Co.  v.  v.  Atlanta  &  Charlotte  Railroad  Co., 
Holt,  11  Am.  &  Eng.  Railw.  Cas.  72.  19  S.  C.39;  Penn.sylvania  Railroad  Co. 
lUit  contra,  and  in  accordance  with  the  v.  Watson,  8H  Penn.  St.  20.J. 
English  rule  stated  supra,  pi.  1,  tlie  (c)  In  Missouri  Pacific  Railway  Co. 
cases  are  somewhat  numerous.  Burke  v.  Kincaid,  11  Am.  &  Eng.  Railw.  Ca.s. 
V.  Louisville  &  Nashville  Railroad  Co.,  83,  it  was  held  that  negligence  might 
7  Ileisk.  Tenn.  451 ;  Simpson  v.  East  be  inferred  from  the  frequent  setting 
Tennessee,  Virginia,  &  Georgia  Rail-  of  fires. 

road  Co.,  5, Lea  Tenn.,  456;  Spaulding         (</)    But  for  a  purely  accidental  fire 

V.  Chicago   &   Northwestern  Railway  caused  by  the  escape  of  sparks  from 

Co.,  33  Wis.  582;  Longabaugh  f.  Vir-  an   engine,   a  companv  in  the  usual 

'  [♦453J 


472 


LIABILITY    FOR   FIRES   BY   ENGINES. 


[part  V. 


7.    And  one  is  not  precluded  from  recovery  in  such  cases,  by 
having  placed  his  buildings  or  other  property  in  an  exposed  posi- 

in  such  a  manner  as  to  endanger  the  structures  near  the  line  of  the  road.  The 
care  and  caution  must  be  in  proportion  to  the  peril.  If  a  railway  track  is  laid 
so  near  the  plaintiff's  barn  as  to  render  it  useless  for  the  ordinary  purpose  he 
may  recover  of  the  company  damages  under  the  statute  for  the  injury.  Wil- 
mington &  Reading  Railroad  Co.  v.  Stauffer,  60  Penn.  St.  374. 


and  ordinary  performance  of  its  busi- 
ness is  not  liable.  Leavenworth,  Law- 
rence, &  Galveston  Railroad  Co.  v. 
Cook,  18  Kan.  261;  Toledo,  Wabash, 
&  Western  Railway  Co.  v.  Larmon,  67 
111.  68;  Philadelphia  &  Reading  Rail- 
road Co.  V.  Schultz,  93  Penn.  St.  341; 
Morris  &  Essex  Railroad  Co.  v.  State, 
36  N.  J.  Law,  553;  Collins  v.  New 
York  Central  &  Hudson  River  Rail- 
road Co.,  5  Hun,  503;  Chicago  &  Alton 
Railroad  Co.  v.  Smith,  11  Brad.  348. 
The  company  is  bound,  however,  to 
use  the  best  known  appliances  for 
preventing  the  escape  of  fire.  Lon- 
gabaugh.w.  Virginia  City  &  Truckee 
Railroad  Co.,  9  Nev.  271;  Pittsburg, 
Cincinnati,  &  St.  Louis  Railroad  Co.  v. 
Nelson,  51  Ind.  150 ;  Jackson  v.  Chi- 
cago &  Northwestern  Railway  Co.,  31 
Iowa,  176.  And  bound  also  to  use 
reasonable  precautions  to  prevent  the 
spread  of  fire  from  winds  usual  at  time 
and  place.  Palmer  v.  Missouri  Pacific 
Railway  Co.,  76  Mo.  217.  Or  from  its 
own  grounds  to  the  lands  of  an  adjoin- 
ing owner.  Kenney  v.  Hannibal  &  St. 
Joseph  Railroad  Co.,  63  Mo.  99. 

The  cases  declaring  what  is  and 
what  is  not  negligence  are  numerous. 
It  is  not  necessarily  negligence  to  per- 
mit dry  grass  and  weeds  to  remain  in 
the  right  of  way.  Perry  r.  Southern 
Pacific  Railroad  Co.,  50  Cal.  578;  Bur- 
lington &  Missouri  River  Railroad 
Co.  V.  Westover,  4  Neb.  26S.  Nor  can 
it  be  said  as  matter  of  law  that  it  is 
not  negligence,  where  the  road  runs 
through  a  prairie  country,  and  its  road- 
[*4o3] 


bed  is  covered  with  wild  grass.  Sib- 
ilrud  V.  Minneapolis  &  St.  Louis  Rail- 
way Co.,  29  Minn.  58.  It  may  be 
negligence  in  some  cases  to  allow  the 
accumulation  of  combustible  matter, 
whether  grass  or  other  matter.  Dela- 
ware, Lackawanna,  &  Western  Rail- 
road Co.  V.  Salmon,  39  N.  J.  Law,  299; 
Pittsburg,  Cincinnati,  &  St.  Louis 
Railroad  Co.  v.  Nelson,  51  Ind.  150; 
Troxler  v.  Richmond  &  Danville  Rail- 
road Co.,  74  N.  C.  377.  See  Jones  v. 
Michigan  Central  Railroad  Co.,  25 
Am.  &  Eng.  Railw.  Cas.  482.  It  is 
for  the  jury  to  say  in  the  light  of  all 
the  circumstances  whether  the  com- 
pany has  permitted  such  an  accumula- 
tion as  would  not  be  permitted  by  a 
prudent  man  in  the  management  of 
his  own  affairs.  Snyder  r.  Pittsburg, 
Cincinnati,  &  St.  Louis  Railroad  Co., 
11  W.  Va.  14.  To  throw  burning 
brands  fi'om  an  engine  into  inflamma- 
ble grass  is  negligence.  Mobile  &  Ohio 
Railroad  Co.  v.  Gray,  62  Miss.  383. 

Negligence  must  be,  when  and  how 
pleaded.  Pittsburg,  Cincinnati  &  St. 
Louis  Railroad  Co.  v.  Culver,  60  Ind. 
469;  Samei'.  Hixon,79Ind.  Ill;  Louis- 
ville, New  Albany,  &  Chicago  Railway 
Co.  r.  Spenn,  87  Ind.  322;  Same  v. 
Ehlert,  87  Ind.  339;  Same  v.  Han- 
mann,  87  Ind.  422.  As  to  the  aver- 
ments necessary,  see  Toledo,  Wabash, 
&  Westei-n  Railway  Co.  v.  Wand,  48 
Ind.  476;  Same  v.  Corn,  71  111.  493; 
Pittsburg,  Cincinnati,  &  St.  Louis 
Railroad  Co.  v.  Nelson,  51  Ind.  150; 
Erie  Railway  Co.  v.  Decker,  78  Penn. 


§  1:^5.J 


LIABILITY    FOIi    FIIIKS   BY    ENGINES. 


473 


tion.^^  (f)     Wc  cannot  forbear  to  add  that  tlic  interference  of  the 
legislatures,  uj)on  tiiis  subject,  in  many  of  the  American  states, 

'0  Cook  I'.  Champlain  Transportation  Co.,  1  Denio,  91,  99,  101.  One  is  not 
precluded  from  recovering  in  such  cases  by  reason  of  having  left  dry  grass  and 
stubble  on  his  land  adjoining  the  railway  to  which  tlie  fire  was  first  communi- 
cated. Flynn  v.  San  Francisco  &  St.  Jo.seph  Railroad  Co.,40  Cal.  11.  But  iti 
Chicago  &  Northwestern  Railway  Co.  v.  Simonson,  54  111.  501,  where  the  fire  was 
conmiunicatod  through  dry  grass  and  weeds  suffered  to  accumulate  on  plain- 
tiff's land  next  the  railway,  it  was  held  that  he  could  not  recover.  The  true  test 
in  such  cases  would  seem  to  be,  wliether  or  not  a  careful  man  would  have 
removed  the  combustible  matter,  if  he  had  owned  both  the  land  and  tiie  rail- 
way. But  in  Kellogg  v.  Chicago  &  Northwestern  Railway  Co.,  2G  Wis.  223, 
the  court  seem  to  think  it  is  not  negligence  in  the  land-owner  to  suffer  such 
combustible  matter  to  accumulate  on  his  land  next  the  line  of  the  railway,  but 
th.at  it  may  be  so  for  the  company  to  suffer  the  same  on  its  own  land.  But  in 
Ohio  &  Mississippi  Railroad  Co.  v.  Shanefelt,  47  111.  497,  it  was  held  not  to 
amount  to  negligence,  per  se,  in  the  railway.  And  in  Kesee  v.  Chicago  & 
Northwestern  Railway  Co.,  30  Iowa,  78,  where  plaintiff's  hay  in  stack,  on  his 
own  land,  half  a  mile  from  the  line  of  the  railway,  was  set  on  fire  by  a  spark 


St.  293.  Negligence  may  be  proved  in 
the  case  of  the  emission  of  sparks  from 
an  engine  by  proof  of  circumstances 
which  might  not  be  satisfactoiy  in 
cases  free  from  the  difficulties  which 
inhere  in  such  cases,  and  open  to 
clearer  proofs.  Garrett  v.  Chicago  & 
Northwestern  Railway  Co.,  36  Iowa, 
121.  And  see  Philadelphia  &  Reading 
Railroad  Co.  v.  Ilendrickson,  8  Penn. 
St.  182;  Atchison,  Topeka,  &  Santa 
Fe  Railroad  Co.  v.  Bales,  IG  Kan.  252. 
Proof  of  other  fires  and  the  emission  of 
sparks  on  other  occasions  or  by  other 
like  engines.  Pittsburg,  Cincinnati, 
&  St.  Louis  Railroad  Co.  v.  Noel,  77 
Ind.  110;  Atchison,  Topeka,  &  Santa 
Fe  Railroad  Co.  v.  Stanford,  12  Kan. 
354;  Henry  v.  Southern  Pacific  Rail- 
road Co.,  50  Cal.  17G;  Crist  v.  Erie 
Railway  Co.,  58  N.  Y.  638;  Nash- 
ville &  Chattanooga  Railroad  Co.  v. 
Tyne,  7  Am.  &  Eng.  Railw.  Cas.  515; 
Philadelphia  &  Reading  Railroad  Co. 
V.  Schultz,  93  Penn.  St.  341;  Annapo- 
lis &  Elk  Ridge  Railroad  Co.  r,  Gantt, 
39  Md.   115;    Grand  Trunk   Railway 


Co.  V.  Richardson,  91  U.  S.  454 ;  Ix)ring 
V.  Worcester  &  Nashua  Railroad  Co., 
131  Mass.  4G9.  But  see  Coale  i\  Han- 
nibal &  St.  Joseph  Railroad  Co.,  60 
Mo.  227;  Lester  c.  Kan.sas  City,  St. 
Joseph,  &  Council  Bluffs  Railroad  Co., 
60  Mo.  265;  Albert  v.  Northern  Cen- 
tral Railroad  Co.,  98  Penn.  St.  316. 
Proof  that  the  same  locomotive  on  the 
same  trip  and  about  the  same  time 
set  other  fires  is  admi.ssible.  Patton 
V.  St.  Louis  &  San  Francisco  Railroad 
Co.,  23  Am.  &  Eng.  Railw.  Cas.  364; 
Lanning  v.  Chicago,  Burlington,  & 
Quincy  Railroad  Co.,  25  Am.  &  Eng. 
Railw.  Cas.  490.  Otiier  facts  from 
which  negligence  may  be  inferred. 
Wiley  V.  West  Jersey  Railroad  Co., 
4 1  N.  J.  Law,  247 ;  Reading  &  Colum- 
bia Railroad  Co.  i*.  Lat.shaw,  93  Penn. 
St.  419;  Baltimore  &  Ohio  lUilroad 
Co.  r.  Sliipley,  39  Md.  2.".l  ;  Karsen  v. 
Milwaukee  &  St.  Paul  Railway  Co., 
29  Minn.  12;  Brusberg  r.  Milwaukee, 
Lake  Shore,  &  Western  Railway  Co., 
55  Wis.  106. 

(f)  Tiie  cases  which  declare  what 
[M53] 


474 


LIABILITY   FOR   FIRES   BY   ENGINES. 


[part  V. 


seems  to  us  an  indication  of  the  public  sense,  in  favor  of  placing 
the  risk  in  such  cases  upon  the  party  in  whose  power  it  lies  most 
to  prevent  such  injuries  occurring.  There  seems  to  us  both  jus- 
tice and  policy  in  the  English  rule  upon  the  subject.  And  in  a 
somewhat  recent  case,^^  it  was  held,  in  actions  against  railway 
companies  for  damages  caused  by  fires  communicated  by  coals 
upon  the  track,  just  after  the  passing  of  a  train,  that  it  was  com- 
petent *  to  show  that  the  company's  locomotives,  in  passing  over 

from  defendants'  engine,  it  was  held  he  could  not  recover,  if  his  negligence 
in  not  protecting  his  stack  contributed  to  the  loss.  The  court  below  charged 
the  jury,  that  if  the  plaintiff  stacked  his  hay  in  an  imprudent  manner  he  took 
the  risk  of  accidental  fires,  but  not  of  those  caused  by  the  defendants'  care- 
lessness. This  may  be  the  better  rule  in  such  a  case. 
"   Field  V.  New  York  Central  Railroad  Co.,  32  N.  Y.  339. 


is  and  what  is  not  contributory  negli- 
gence are  numerous.  It  has  been 
many  times  held  that  the  owner  of 
adjoining  land  is  not  bound  to  keep 
it  free  from  leaves  and  other  com- 
bustible material.  Delaware,  Lacka- 
wanna, &  Western  Railroad  Co.  v. 
Salmon,  39  N.  J.  Law,  299;  Phila- 
delphia &  Reading  Railroad  Co.  v. 
Schultz,  93  Penn.  St.  341 ;  Pittsburg, 
Cincinnati,  &  St.  Louis  Railway  Co. 
V.  Jones,  8G  Ind.  496;  Richmond  & 
Danville  Railroad  Co.  v.  Medley,  75 
Va.  499.  Leaving  a  roof  in  disre- 
pair is  not  contributory  negligence. 
Philadelphia  &  Reading  Railroad  Co. 
V.  Hendrickson,  8  Penn.  St.  182.  Not 
necessarily  negligence  to  fail  to  plow 
around  stacks.  Lindsay  v.  Winona  & 
St.  Peter  Railroad  Co.,  29  Minn.  411 ; 
Kansas  City,  Fort  Scott,  &  Gulf  Rail- 
road Co.  V.  Owen,  25  Kan.  419;  Bur- 
lington &  Missouri  River  Railroad  Co. 
V.  Westover,  4  Xeb.  268.  Nor,  it 
seems,  to  leave  a  window  open  so  that 
sparks  may  fly  in.  Louisville,  New 
Albany,  &  Chicago  Railway  Co.  v. 
Richardson,  66  Ind.  43.  Nor  not  to  re- 
move a  building  near  the  track  where 
the  road  is  built  at  such  a  distance 
that  it  is  not  likely  to  burn  the  build- 
[*454] 


ing.  Caswell  v.  Chicago  &  North- 
western Railway  Co.,  42  Wis.  193. 
But  where  one  erects  a  building  near 
a  track  he  is  presumed  to  assume 
some  risk,  and  is  bound  to  a  higher 
degree  of  care  than  the  owner  of  less 
exposed  property.  Chicago  &  Alton 
Railroad  Co.  v.  Pennell,  94  III.  448. 
And  see  Kansas  City,  Fort  Scott,  & 
Gulf  Railroad  Co.  v.  Owen,  25  Kan. 
419.  Contributory  negligence  may, 
of  course,  consist  in  not  trying  to  save 
burning  property.  Chicago  &  Alton 
Railroad  Co.  v.  Pennell,  94  111.  448. 
But  the  owner  is  not  bound  to  use  ex- 
traordinary means.  Bevier  v.  Dela- 
ware &  Hudson  Canal  Co.,  13  Ilun, 
254.  A  party  cannot  be  charged  with 
negligence  for  not  doing  that  which 
if  done  would  afford  no  protection. 
Lewis  V.  Chicago,  Milwaukee,  &  St. 
Paul  Railroad  Co.,  57  Iowa,  127. 
The  question  of  contributory  negli- 
gence is  for  the  jury.  Murphy  v. 
Chicago  &  Northwestern  Railway  Co., 
45  Wis.  222;  Collins  v.  New  York 
Central  &  Hudson  River  Railroad  Co., 
71  N.  Y.  609;  Missouri  Pacific  Rail- 
way Co.  V.  Cornell,  11  Am.  &  Eng. 
Railw.  Cas.  56. 


§  125.]  LIABILITY    FOn    FIRES    BY    ENGINES.  475 

the  road  on  former  occasions,  dropped  coals  upon  the  track  at  or 
near  the  same  place  ;  and  also,  where  it  was  in  evidence  that 
eiifrincs  properly  constructed  and  in  good  order  will  not  drop 
coals  upon  the  track,  that  the  fact  of  defendants'  engines  doing 
so  is,  in  itself,  evidence  of  negligence  sufhcient  to  charge  the 
defendants,  thus  imposing  upon  them  the  burden  of  showing  that 
they  were  not  culpable. 

8.  And  w'here  the  railway  companies  arc  made  liable  for  all 
damage  in  this  way,  as  they  are  in  Massachusetts  and  some  of  the 
other  states  by  statute,  if  one  whose  property  is  insured  suffer  loss 
in  this  way,  and  the  insurers  pay  him  his  entire  loss,  they  may 
recover  in  his  name  against  the  company.^^  (^j^  ^^d  the  insurer 
may  recover  of  the  carrier  in  the  name  of  the  consignor,  on  whose 
behalf  the  policy  was  effected,  after  having  paid  the  amount  of  the 
loss  to  the  consignor. 13 

9.  Cy  statute  in  some  of  the  states,  as  we  have  seen,  railways 
are  made  liable  for  any  injury  to  "  buildings  or  other  property  of 
any  person  —  by  fire  communicated  "  by  their  locomotive  engines, 
and  it  is  sometimes  specially  provided  that  railways  shall  have  an 

12  Hart  V.  Western  Railroad  Co.,  13  Met.  99.  And  under  such  a  statute, 
where  the  sparks  from  the  engine  communicated  fire  to  a  shop,  and  the  wind 
drove  the  sparks  from  the  shop  sixty  feet  across  the  street,  and  set  fire  to  a 
hou.se,  it  was  held  that  the  second  fire  must  be  regarded  as  "  communicated  " 
by  the  company's  engine.     Id.     But  see  infra,  pi.  16. 

In  a  contract  of  insurance  in  favor  of  a  railway  company,  on  "cars  of  all 
descriptions ...  on  the  line  of  their  road  and  in  actual  use,"  where,  in  answer 
to  the  inquiry,  "  where  the  property  was  situated,"  the  company  replied  "  from 
Boston  to  Fitchburg  and  branches  this  side  of  Fitchburg;"  and  the  cars  of 
the  plaintiff's  company  loaded  with  ice,  standing  on  a  track  belonging  to 
the  proprietors  of  a  wharf  where  the  ice  was  unloaded,  but  communicating 
witli  the  track  of  the  road,  were  l)urned  by  a  fire  commimicatod  from  the 
wharf,  it  was  held  to  come  within  the  contract,  and  the  insurance  company 
was  held  liable.  Fitchburg  Railroad  Co.  r.  Charlestown  Mutual  Insurance 
Co.,  7  Gray,  61. 

13  Burnside  v.  Union  Steamboat  Co.,  10  Rich,  llo;  darrison  v.  Memphi.s 
Insurance  Co.,  19  How.  312.  See  also  Hall  v.  Nashville  &  Chattanooga  Rail- 
way Co.,  13  Wal.  367,  where  the  rule  laid  down  in  the  toxt  is  declared  to  be 
the  settled  law,  and  the  cases  are  cited  by  Mr.  .lustice  Strong. 

(/)  yEtna  Insurance  Co.  r.  Ilanni-  ance  Co.  v.  Erie  Railway  Co  ,73  X.  Y. 
bal  &  St.  Joseph  Railroad  Co.,  3  Dil.  300;  Swarthout  r.  Chicago  &  Xorth- 
1 ;  Kentucky  Insurance  Co  v.  Western  western  Railway  Co.,  49  Wis.  625.  See 
&  Atlantic  Railroad  Co.,  8  Baxter  Cunningham  v.  Evansville  &  Terre 
Tenn.  268;   Connecticut  Fire  Insur-     Haute  Railroad  Co.,  102  Ind.  478. 

[M54] 


476  LIABILITY    FOR    FIRES   BY   ENGINES.  [PART   V. 

insurable  interest  in  such  property.  But  it  has  been  held  that 
such  statutory  liability  only  extends  to  property  of  a  permanent 
nature,  and  upon  which  an  insurance  may  be  effected  ;  and  that 
for  injuries  of  this  kind  to  other  property  the  *  company  will  only 
be  responsible  for  negligence,  unskilfulness,  or  imprudence  in 
running  and  conducting  their  engines.^^ 

10.  And  where  by  statute  railway  companies  are  made  liable 
for  all  damages  caused  to  property  so  near  the  road  as  to  be 
exposed  to  fire  from  their  engines,  it  was  held  to  extend  to  all 
property  subject  to  insurance,  and  to  include  growing  trees.^^ 

11.  Many  of  the  English  railway  companies  make  it  a  condition 
that  certain  goods  shall  be  insured  and  declared,  or  else  they  will 
not  be  responsible  for  any  loss  which  may  occur  in  regard  to  them. 
Such  a  condition  seems  reasonable,  and  it  is  so  treated  by  the 
English  courts.  But  to  be  any  protection  to  the  companies  it 
must  assume  that  the  insurers  are  bound  to  make  good  any  loss, 
as  well  for  the  benefit  of  the  assured  as  for  that  of  the  company, 
and  that  the  company  are  not  responsible  to  the  insurer  unless 
perhaps  for  neglect  of  duty  as  a  faithful  bailee. ^^  But  to  produce 
this  result,  the  policy  should  specify  that  the  insurance  is  for  the 
benefit  of  the  company  as  well  as  the  owners.  Strictly  speaking 
there  is  no  privity,  in  case  of  insurance  against  fire,  except  as  to 
the  immediate  parties  to  the  risk,  and  to  give  any  other  party  not 
named  in  the  policy  the  benefit  of  the  insurance  is  an  equitable 
extension,  and  one  which  the  courts  have  declined  to  make  some- 
times, as  between  mortgagor  and  mortgagee.^'^  But  where  the 
insurer  pays  the  insurance,  on  the  destruction  of  the  property,  it 

"  Chapman  v.  Atlantic  &  St.  Lawrence  Railroad  Co.,  37  Me.  92.  This 
was  an  action  for  the  loss  of  cedar  posts,  piled  on  land  adjoining  the  railway, 
by  the  consent  of  the  owner  of  the  land,  and  set  on  fire  by  a  spark  from  the 
defendant's  engine,  and  the  defendant  was  held  not  liable  under  the  statute. 
AVhere  an  action  is  brought  against  a  railway  company  for  damage  done  by 
fire  from  its  engines,  in  states  w'here  it  is  made  responsible  for  such  damage 
in  all  cases,  it  will  be  no  defence,  that  in  estimating  damages  to  plain- 
tiff's grantor  damage  by  fire  from  company's  engines  was  included.  Quaere, 
whether  if  plaintiff  had  been  the  owner  of  the  land,  at  the  time  damage 
was  so  assessed,  it  would  have  afforded  any  defence  ?  Pierce  v.  Worcester  & 
Nashua  Railroad  Co.,  105  Mass.  199;  infra,  pi.  13,  and  note. 

^^  Pratt  V.  Atlantic  &  St.  Lawrence  Railroad  Co.,  42  Me.  579. 

16  Feck  V.  North  Staffordshire  Railway  Co.,  Ellis,  B.  &  E.  956. 

"  Columbia  Insurance  Co.  v.  Lawrence,  10  Pet.  507,  512,  per  Story,  J.; 
White  V.  Brown,  2  Cush.  412. 
[*455] 


§  125.]  LIABILITY    FOR   FIRKS    BY   ENGINES.  477 

has  been  held  that  he  will  be  subrog^atcd  to  any  claim  the  party 
insured  might  have  against  other  parties,'^  unless  that  is  excluded 
by  the  terms  of  the  policy. 

12.  The  English  statute  ^'^  subjects  railway  companies  to  a 
penalty  for  each  day  they  use  an  engine  upon  their  roads  so  con- 
structed as  not  to  consume  its  own  smoke.  But  it  has  been  held 
that  this  only  refers  to  the  construction  of  the  engine  when  under 
proper  management,  and  that  the  penalty  is  not  incurred  *  by  an 
engine  emitting  smoke  instead  of  consuming  it  in  consequence  of 
bad  management  and  not  of  defective  construction.'^ 

13.  The  Massachusetts  statute,  making  railway  companies  re- 
sponsible for  loss  by  fire  communicated  by  their  engines,  and 
giving  them  an  insurable  interest  in  the  property  exposed  to  fire 
in  that  mode,  was  held  to  embrace  personal  property,  although  the 
company  had  no  knowledge  or  reasonable  cause  to  believe  that 
such  property  was  situated  where  it  might  be  so  injurcd.^'fr/)  And 
in  the  trial  of  an  action  for  such  injury,  where  it  was  claimed  that 
no  burning  sparks  could  reach  far  enough  to  communicate  the  fire, 
it  is  competent  to  show  that  the  same  engine  using  similiar  fuel 
emitted  sparks  reaching  a  greater  distance.^i  And  where  it  was 
attempted  to  show  that  similar  engines  did  not  on  other  roads 
emit  sparks  reaching  that  distance,  it  is  competent  to  prove  that 
such  engines  on  other  roads  have  emitted  sparks  which  did  com- 
municate fire  at  that  distance.^'  In  such  an  action,  where  the 
question  of  plaintiff's  want  of  due  care  depends  upon  the  consid- 
eration of  the  dryness  of  the  season,  the  strength  and  direction  of 
the  wind,  and  the  condition  of  the  plaintiff's  buildings,  it  is  proper 
to  submit  to  the  jury,  under  general  instructions,  whether  the 
plaintiff  exercised  due  care  or  not,  and  if  this  is  done  no  excej)tion 

"  Sussex  County  Mutual  Insurance  Co.  v.  Woodruff,  2  Dutcher,  541;  supra, 
pi.  8,  notes  12,  13. 

"  Statute  8  &  9  Vict.  c.  20,  §  lU. 

^  Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.  v.  Wood,  29  Law  .1. 
29;  s.  c.  1  Law  T.  n.  s.  31;  s.  c.  2  Ellis  &  E.  314. 

^1  Ross  V.  Boston  &  Worcester  Railroad  Co.,  G  Allen.  87.  The  company 
should  use  precautions  to  prevent  fire  escapintj  from  its  engines  or  it  will  be 
responsible  for  consequences.  Bass  v.  Chicago,  Burlington,  &  Quincy  Riiilroad 
Co.,  28  111.  9. 

(g)  The  liability  of  companies  for  statute,  as  in  Maryland,  New  Jersey, 
files,  set  by  engines,  is  regulated  in  Illinois,  Io^Vl^  Missouri,  Minne.-^ota.  &c. 
some  of  the  states  in  some  degree  by 

[•450] 


478  LIABILITY    FOR    FIRES   BY   ENGINES.  [PART   V. 

lies  to  a  refusal  to  instruct  the  jury  that  "if  the  season  was  dry, 
and  the  wind  was  from  the  railway  and  strong,  and  the  plaintiff 
knew  those  facts  and  left  a  door  of  a  shed  open  towards  the  rail- 
way, and  combustible  materials  within  the  shed,  and  that  con- 
tributed to  the  fire,  it  is  evidence  of  negligence  on  his  part  which 
should  preclude  his  recovery."  21 

14.  A  question  of  considerable  practical  importance  has  been 
determined  by  the  court  of  Exchequer  Chamber  in  England, 
which  may  be  thought  sometimes  to  have  a  bearing  upon  the  con- 
duct of  railways.  The  proposition  there  maintained  is,  that  if  a 
person  bring  on  his  own  land  any  thing,  which,  if  it  escape,  may 
prove  injurious  to  his  neighbor's  property,  such  as  a  large  body  of 
water,  he  is  liable  to  make  compensation  for  any  injury  that  may 

*  accrue  from  its  escape  out  of  his  land ;  and  it  is  no  excuse,  if  it 
do  escape  and  cause  damage  to  his  neighbor,  that  the  injury  was 
caused  without  any  default  or  negligence  on  his  part.^  And  the 
question  has  been  recently  presented  as  applied  to  railways,  in  an 
English  case,^^  where  it  was  held,  the  defendant  having  obtained 
its  charter  in  1832,  to  enable  it  to  remove  minerals  upon  wagons 
and  other  carriages  upon  its  railway  or  tramway,  but  having  no 
parliamentary  power  to  use  steam  locomotive  engines,  but  had  as- 
sumed to  do  so,  in  the  transportation  of  passengers  along  its  line, 
under  permission  from  the  Board  of  Trade,  by  reason  of  which 
the  plaintiff's  buildings  along  the  line  had  been  set  on  fire  by 
sparks  emitted  from  the  engines,  without  proof  of  negligence 
on  the  part  of  the  company,  that  it  was  responsible  at  common 
law  without  regard  to  the  question  of  negligence,  inasmuch  as  it 
had  no  legal  right  to  use  those  engines  in  that  place. 

*  15.  The  carefully  considered  judgment  of  the  full  court  of 
Exchequer   Chamber   by  Blackburn,   J.,   contains   many  points 

*  bearing  upon  questions  which  are  liable  to  arise  in  the  course  of 
the  construction  and  operation  of  railways,  and  we  should  have 
inserted  it  here  but  for  want  of  space.^  *  The  opinion  points 
out  very  clearly  for  what  matters  railway  companies  *  and  others 
are  or  are  not  to  be  held  responsible,  if  there  is  no  actual  negli- 
gence on  their  part. 

*  16.  A  question  of  considerable  practical  importance  has  been 

22  Fletcher  v.  Rylands,  Law  Rep.  1  Exch.  2G5;  12  Jur.  N.  s.  003;  s.  C  11 
Jur.  N.  s.  714,  afBrmed  in  House  of  Lords,  3  IL  L.  Cas.  338. 
2*  Jones  V.  Festiniog  Railway  Co.,  Law  Rep.  3  Q.  B.  733. 
[*457_*462] 


§  125.]  LIABILITY    FOR    FIRES   BY    ENGINES,  470 

somewhat  discussed,  in  regard  to  the  extent  of  tlic  responsibility 
*  of  railway  companies,  or  others,  for  fires  coniinunicated  by  the 
accidental  extension  of  other  (ires,  for  which  the  party  throui^h 
negligence  or  otherwise  is  confessedly  responsible.  Upon  prin- 
ciple, it  would  seem,  that  one  who  is  the  unintentional,  but  care- 
less, cause  of  setting  a  fire,  should  not  be  held  responsible  for 
damage  beyond  the  immediate,  direct,  and  natural  consequences  of 
the  original  fire.  There  are  numerous  disastrous  consequences  re- 
sulting sometimes  from  setting  fires,  but  which  are  so  rare  as  not 
to  be  fairly  reckoned  in  the  category  of  natural  or  ordinary  results, 
by  way  of  cause  and  effect.  A  fireman  may  be  fatally  injured  and 
a  family  beggared,  or  a  horse  may  be  frightened,  and  the  fathers 
of  more  than  one  dependent  family  killed,  or  cripj^lcd  for  life,  in 
consequence.  But  no  actions  have  ever  been  instituted  for  any 
such  remote  damages.  And  although  some  of  the  cases  bear  a 
considerably  close  analogy  to  these  in  principle,  it  must,  we  think, 
be  treated  as  the  prevailing  rule  of  law  that  such  remote  and  con- 
sequential damages  will  not  form  the  ground  of  an  action  in  the 
courts.  And  in  Ryan  v.  New  York  Central  Railway,'^*  it  was  held 
the  defendants  were  not  responsible  for  the  destruction  of  the 
plaintiff's  house,  distant  one  hundred  and  thirty  feet  from  their 
shed,  which  had  been  set  on  fire  through  their  own  negligent  con- 
duct in  regard  to  one  of  their  engines,  or  by  reason  of  some  defect 
in  the  engine,  from  which  the  fire  had  communicated  to  the 
plaintiff's  house.     This  seems  a  misapplication  of  the  rule. 

17.  The  question  discussed  to  some  extent  in  the  preceding 
paragraph  is  constantly  attracting  more  and  more  attention  from 
the  courts  in  different  classes  of  cases.  The  necessity  of  the  de- 
fendant's act  being  the  proximate  cause  of  the  damage  in  order 
to  hold  him  responsible  for  it  in  an  action  at  law,  is  by  no  means 
new.  It  is  the  real  distinction  between  privity  and  want  of 
privity  in  matters  of  contract.  And  the  same  principle  holds  in 
regard  to  torts,  whether  voluntary  or  negligent.  The  defendant 
can  only  be  held  responsible  for  the  immediate  consequences  of  his 
act  or  neglect,  and  not  for  any  remote  and  incidental  result,  liow- 
ever  certain  it  may  be  that  the  damage  really  did  result  from  such 
act  or  neglect.  The  question  is  very  ably  discussed  by  Hunt,  .!., 
in  the  case  of  Ryan  v.  New  York  Central  Railwav  ;'"^'*  and  the 
"  35  N.  Y.  210.  But  see  Trask  v.  Hartford  &  New  Haven  Railroad  Co., 
2  Allen,  331. 

[•463] 


480  LIABILITY   FOR   FIRES   BY  ENGINES.  [PART  V. 

case  of  the  Pennsylvania  Railway  v.  Kerr  ^  adopts  the  same  view, 
and  discusses  the  cases  with  great  clearness  and  force,  in  an 
opinion  of  considerable  length  by  Thompson,  C.  J.  The  learned 
judge  refers  to  several  other  American  cases  ^  bearing  in  the  same 
direction.  The  English  cases  bearing  upon  the  question  do  not 
seem  to  have  considered  the  distinction  between  proximate  and 
remote  causes,  and  some  of  them  seem  to  have  gone  upon  grounds 
somewhat  in  conflict  with  the  opinion  here  expressed.^'  (7i)     But 

25  27  Leg.  Int.  228;  s.  c.  62  Penn.  St.  353. 

28  Harrison  v.  Berkley,  1  Strob.  548;  Lowrie,  J.,  in  Morrison  v.  Davis,  8 
Harris,  Penn.  St.  171. 

2''  Smith  V.  London  &  Southwestern  Railway  Co.,  Law  Rep.  5  C.  P.  98 ;  s.  c. 
18  W.  R.  343;  19  W.  R.  230.  But  see  Burrows  v.  March  Gas  &  Coke  Co., 
Law  Rep.  5  Exch.  67;  7  Exch.  96,  where  the  question  of  excusing  the  party 
in  fault  for  secondary  consequences  of  his  misconduct  is  somewhat  restricted. 
And  in  Smith  i\  London  &  Southwestern  Railway  Co.,  Law  Rep.  6  C.  P.  14,  the 
majority  of  the  English  judges  seem  to  think  one  is  responsible  for  the  re- 
motest direct  and  immediate  consequences  of  his  negligence,  whether  he  could 
have  foreseen  them  or  not,  and  this  seems  reasonable.  The  Massachusetts 
Supreme  Court,  in  a  late  case,  adopts  much  the  same  rule.  Perley  v.  Eastern 
Railroad  Co.,  98  Mass.  414.  But  see  Barron  v.  Eldredge,  100  Mass.  455.  And 
Hart  V.  Western  Railroad  Co.,  supra,  note  12,  is  precisely  the  same.  It  would 
seem  like  a  misapplication  of  the  rule  to  excuse  one,  carelessly  responsible  for 
the  consequences  of  setting  a  fire,  for  all  the  damage  caused  by  the  fire  except 
the  very  first  object  burned,  on  the  ground  that  all  else  is  but  a  secondary 
consequence  of  the  fire,  and  therefore  too  remote  to  form  the  ground  of  an 
action.  We  might  as  well  argue  that  all  the  consequences  of  misconduct, 
except  the  very  first,  were  to  be  borne  by  the  sufferer  without  redress.  Aa 
•where  one  carelessly  lets  out  water  which  floods  a  city,  and  destroys  millions 
of  property,  it  might  be  said  the  party  in  fault  was  only  responsible  for 
the  loss  of  the  water.  The  truth  is  that  all  the  buildings  or  pro[)erty  burned 
by  a  fire  are  destroyed  by  the  negligence  of  the  party  setting  the  first  fire,  as 
directly  as  the  very  first  building.  And  any  attempt  to  define  one  as  the 
proximate  result,  and  the  others  as  merely  the  remote  consequences  of  the  fire, 
is  but  a  misconception  and  misapplication  of  the  rule  of  proximate  and  remote 
causes.  But  see  Kesee  v.  Chicago  &  Northwestern  Railway  Co.,  30  Iowa,  78. 
Since  the  foregoing  was  written  an  able  and  learned  opinion  of  Lawuexce,  C.  J., 
in  Feut  v.  Toledo,  Peoria,  &  Warsaw  Railroad  Co.,  1  Redf.  Am.  Railw.  Cas.  350, 
has  come  to  hand.  The  learned  judge,  upon  a  full  review  of  the  cases,  comes 
very  decidedly  to  the  opinion  here  expressed.  Safford  v.  Boston  &  Maine  Rail- 
road Co.,  103  !Mass.  583,  adopts  the  same  view.  In  a  late  English  Case,  Lord 
Bailiffs  V.  Trinity  House,  Law  Rep.  5  Exch.  204,  7  Exch.  247,  where  the  defend- 

Qi)  It  has  been  held  in  several  cases    the  fire  first  burns  over  the  premises 
that  the  cause  is  not  too  remote  where    of  an  intermediate  proprietor,  the  in- 
[*463] 


125.] 


LIABILITY    liMC    IIUES    BY    KNGINES. 


481 


we  do  not  apprehend  the  English  courts  can  finally  extend  the  rule 
of  damages,  in  such  cases,  hoyund  tlic  ininiediatc  and  direct  con- 
sequences of  the  defcndiinrs  act  or  neglect,  whatever  that  may  be. 
The  case  last  cited  does  not  seem  to  fairly  raise  the  question  of 
jiroxiniate  and  remote  consequences  of  tortious  acts.  The  real 
gravamen  of  the  neglect  of  duty  on  the  part  of  the  defendant 
seems  to  have  been  leaving  mowed  grass  and  other  "  rummage," 
as  it  is  here  called,  on  the  sides  of  the  track  in  small  heaps  for 
two  weeks  in  very  dry  weather,  thus  exposed  to  be  ignited  by  the 

ant's  vessel,  owing  to  the  negligence  of  the  defendant's  servants,  struck  on  a 
saud-bank,  and  becoming  from  that  cause  unmanageable,  was  driven  by  wind 
and  tide  upon  the  plaintiff's  sea-wall  and  damaged  it,  it  was  held,  both  in  the 
Court  of  Exchequer  and  in  the  Exchequer  Chamber,  that  the  defendant  was 
responsible.  But  where  the  plaintiff's  store  was  burned  by  fire  communicated 
from  defendant's  engine,  not  without  fault,  and  a  large  sum  of  money  therein, 
which  the  plaintiff  might  have  saved  without  danger,  had  he  not  forgotten  it 
in  saving  other  property,  was  consumed,  it  was  held  that  he  could  not  recover 
for  the  money.     Toledo,  Peoria,  &  Warsaw  Railroad  Co.  v.  Piuder,  5^3  111.  117. 


jury  being  the  direct  consequence  of 
the  firing.  Henry  v.  Southern  Pacific 
Railroad  Co.,  50  Cal.  170;  Atchison, 
Topeka,  &  Santa  Fe  Railroad  Co.  v. 
Bales,  16  Kan.  252.  And  see  Butcher 
V.  Vaca  Valley  &  Clear  Lake  Railroad 
Co.,  22  Am.  &  Eng.  Railw.  Cas.  014. 
And  it  will  make  no  difference  that, 
having  at  first  progressed  slowly  and 
burned  but  little  during  the  night,  it 
is  on  the  next  day  carried  a  great  dis- 
tance by  a  high  wind,  such  winds  not 
being  unusual.  Poeppers  i'.  Missouri, 
Kansas,  &  Texas  Railway  Co.,  07  Mo. 
715.  But  see  Toledo,  Wabash,  & 
Western  Railroad  Co.  v.  Muthers- 
baugh,  71  III.  572,  where  it  was  held 
that  the  company  was  not  liable  for 
the  burning  of  a  building  a  hundred 
rods  from  one  fired  by  the  company's 
negligence,  the  fire  having  been  com- 
municated not  by  intermediate  com- 
bustible material,  but  by  a  high  wind. 
And  see  Kellogg  v.  Milwaukee  &  St. 
Paul  Railway  Co.,  5  Dillon,  537. 
Xor  will  it  make  any  difference  that 

VOL.  1—31 


the  damage  is  caused  by  a  fire  which 
is  the  union  of  two  fires,  each  of  which 
was  set  by  the  negligence  of  tiie  com- 
pany. Atchison,  Topeka,  &  Santa  Fe 
Railroad  Co.  v.  Stanford,  12  Kan.  354. 
The  question  of  distance  seems  to  be 
of  small  moment.  liin-lington  &  Mis- 
souri River  Railroad  Co.  r.  Wostover, 
4  Neb.  268 ;  Atchison,  Topeka,  &  Santa 
Fe  Railroad  Co.  v.  Stanford,  supra  ; 
Poeppers  v.  Missouri,  Kansas,  &  Texas 
Railway  Co.,  supra.  Where  the  fire  is 
not  set  directly  to  the  property  in 
question,  but  is  the  result  of  spread- 
ing, the  question  of  whether  the  burn- 
ing is  the  natural  consequence,  &c.,  is 
a  question  for  the  jury.  Annapolis  & 
Elk  Ridge  Railroad  Co.  r.  Cantt.  3!( 
]\Id.  115;  Perry  v.  Southern  Paeifio 
Railroad  Co.,  50  Cal.  57S;  Lehigh 
Valley  Railroad  Co.  v.  McKeen,  90 
Penn.  St.  122.  Fire  set  by  sparks 
from  an  engine  is  prima  facie  the 
result  of  the  company's  negligence. 
Kenney  v.  Hannibal  &  St.  Joseph 
Raih-oadCo.,  70  Mo.  252. 

[*4G3] 


482  LIABILITY    FOR    FIRES   BY   ENGINES.  [PART   V, 

sparks  from  the  passing  engines.  The  company  had  the  right  to 
use  the  engines,  and  there  was  no  evidence  that  the  company  did 
not  use  every  precaution  that  science  liad  suggested  to  prevent 
injury  so  far  as  the  use  of  the  engines  was  concerned.  The  cause 
of  the  fire  was  the  exposed  state  of  such  combustible  matter ;  and 
when  the  lire  occurred  it  was  not  a  case  where  the  burning  of  the 
cottage  two  hundred  yards  distant  could  be  said  to  be  only  a  re- 
mote consequence  of  the  negligence  ;  certainly  not  if  "  remote  "  is 
used  in  the  sense  of  "  secondary."  If  that  were  to  be  so  held,  no 
railway  would  ever  be  responsible  for  the  consequences  of  a  fire 
first  kindled  on  its  own  land ;  for  all  fires  springing  from  it  would 
be  too  remote  consequences  of  tlie  first  act  to  form  the  basis  of  an 
action. 

[*463] 


§  l^G.] 


INJURIES   TO    DOMESTIC    ANIMALS. 


483 


♦CHAPTER    XVni. 


INJURIES   TO    DOMESTIC    ANIMALS. 


1,  2.  Company  not  liable  iiiiloss  bound  |  15. 
to  keep  the  animals  off  the  track, 
n.  (a)  Liability  of  lessor  and  lessee. 
Regulation  by  statute.  IG- 

3.  Company  not  liable  where  the  animaJs 

were  wronijfully  abroad.  1  10, 

4.  Not  liable  for  injury  to  animals,  on  ! 

land  where  not  bound  to  fenee.  20. 

5.  Where  company  bound  to  fence,  prima 

facie  liable  for  injury  to  cattle. 

6.  But  if  owner  is  in  fault,  company  not     21 

liable. 

7.  In  such  case  company  liable  only  for 

gross  neglect  or  wilful  injury. 

8.  Owner  cannot  recover,  if  he  suffer  bis     23, 

cattle  to  go  at  large  near  a  railway- 

9.  Company  not  liable  in  such  case,  un-     24. 

less  they   might  have  avoided  the 
injury.  lio 

n.  (g)  Kate  of  speed  considered   as     20, 
negligence  ]>er  se.  2' 

10.  Company    required    to    keep    gates 

closed,  liable  to  any  party  injured     28, 
by  omission.  30, 

11.  Independently   of  statute,   company 

not  bound  to  fence.  31, 

12.  17.  Not  liable  for  consequences  of  the 

proper  use  of  its  engines. 

13.  Questions  of  negligence  ordinarily  to 

be  determined  by  jury.  33, 

«.  (i)  Questionsof  contributory  negli- 
gence, what  constitutes.  31 

14.  But  only  where  the  testimony  leaves 

the  question  doubtful. 


Actions   may   be    maintained   some- 
times, for  remote  consequences  of 
negligence. 
•18.  Especially  where  a  statutory  duty 
is  neglected  by  company. 

Question  of  negligence  is  one  for  the 

jury- 
One  who  suffers  an  animal  to  go  at 

large   can   recover   only    for  gross 

neglect. 
Testimony  of  experts  receivable  as  to 

management  of  engines. 
One  who  suffers  cattle  to  go  at  large 

must  take  the  risk. 
Company   owes   a  primary  duty  to 

passengers,  &c. 
In   Maryland  company  liable  unless 

for  unavoidable  accident. 
In  Indiana  common-law  rule  prevails- 
In  Missouri,  rule  modified  by  statute. 
In  California  cattle  may  lawfully  be 

suffered  to  go  at  large. 
20.  Various  decisions  in  Illinois. 
Weight  of  evidence  and  of  presump- 
tion. 
Company  not  liable  except  for  negli- 
gence. 
Company  must  use  all  statutory  and 

other  precautions. 
Not   competent  to  prove  negligence 

of  the  samekimlon  other  occasion.*. 
Kule  of  damages  in  general,  value  of 

animal,  &.c. 


§  126.  1.  The  decisions  upon  tlic  subject  of  injuries  to  domestie 
animals  by  railways  are  very  numerous,  but  may  bo  reduced  to 
comparatively  few  principles.  Where  the  owner  of  the  animals  is 
unable  to  show  that  as  ag:ainst  the  railway  they  were  jiroperly 
upon  the  track,  or,  in  other  words,  that  it  was  through  the  fault  of 
the  companv  that  they  were  enabled  to  come  u})on  the  road,  the 

[«464] 


484 


INJURIES  TO   DOMESTIC   ANIMALS. 


[part 


company  are  not  in  general  liable,  unless,  after  they  discovered 
the  animals,  they  might,  by  the  exercise  of  proper  care  and  j)ru- 
dence,  have  prevented  the  injury,  (a)     *  The  fact  of  killing  an 


(a)  The  question  of  what  company 
will  be  liable,  whether  lessor  or  lessee, 
has  been  settled  in  some  of  the  states 
by  statute,  as  in  Indiana,  where  the 
lessee,  operating  the  road  in  its  own 
name,  is  alone  liable.  Pittsburg,  Cin- 
cinnati, &  St.  Louis  Railway  Co.  v. 
Hunt,  71  111.  229.  And  in  California, 
where  the  lessor  is  liable  for  want  of 
fences.  Fontaine  v.  Southern  Pacific 
Railroad  Co.,  54  Cal.  6i5.  And  in 
Iowa,  where  both  lessor  and  lessee 
are  liable  for  want  of  cattle-guards. 
Downing  v.  Chicago,  Rock  Island,  & 
Pacific  Railroad  Co.,  43  Iowa,  96. 
And  in  Missouri,  where  the  lessee  oper- 
ating its  trains  with  its  own  men  is 
liable  in  double  damages  for  want  of 
fences.  Farley  v.  St.  Louis,  Kansas 
City,  &  Northern  Railway  Co.,  72  Mo. 
338.  And  where,  if  a  mere  licensee  is 
running  a  train,  the  owner  of  the  road 
is  liable  for  an  accident,  the  result  of 
a  want  of  fence.  Kansas  City,  Fort 
Scott,  &  Gulf  Railroad  Co.  v.  Ewing, 
23  Kan.  273.  In  Indiana,  by  statute, 
the  company  is  jointly  and  severally 
liable  with  contractors.  Huey  v.  In- 
dianapolis &  Yincennes  Railroad  Co., 
4.5  Ind.  320.  As  to  roads  operated  by 
trustees  or  receivers,  see  Kansas  Pacific 
Railway  Co.  r.  Wood,  24  Kan.  619; 
Union  Trust  Co.  v.  Kendall,  20  Kan. 
515;  Indianapolis,  Cincinnati,  &  La- 
fayette Railroad  Co.  v.  Ray,  51  Ind. 
269. 

The  liability  of  railroad  companies 
for  injuries  to  domestic  animals  is 
now  fixed  in  numbers  of  the  states  by 
statute.  So  of  practice  in  proceedings 
to  enforce  it.  See  infra,  pi.  24,  et  xeq. 
In  Alabama  the  company  is  liable 
whenever  the  injury  results  from  the 
[*465] 


negligence  of  its  servants;  no  dili- 
gence will  excuse  the  company  when 
the  injury  occurs  at  a  public  road- 
crossing,  or  at  any  regular  stopping- 
place,  or  because  of  an  obstruction, 
unless  the  requirements  of  the  statute 
have  been  complied  with;  and,  injury 
being  shown,  the  burden  is  on  the 
company  to  prove  no  negligence  or  a 
compliance  with  the  statute.  Mobile 
&  Ohio  Railroad  Co.  v.  Williams,  53 
Ala.  595;  South  &  North  Alabama 
Railroad  Co.  v.  Thompson,  62  Ala. 
494.  But  see  Zeigler  v.  South  & 
North  Alabama  Railroad  Co. ,  58  Ala. 
594.  The  matter  is  regulated  by 
statute  in  Colorado.  See  Atchison, 
Topeka,  &  Santa  Fe  Railroad  Co.  v. 
Lujan,  6  Col.  338.  In  Georgia  the 
presumption  of  negligence  is  in  all 
cases  against  the  company.  Georgia 
Railroad  &  Banking  Co.  v.  Cox,  64 
Ga.  619.  In  Iowa  it  is  not  necessary 
that  the  animal  be  actually  struck, 
Kraus  v.  Burlington,  Cedar  Rapids,  & 
Northern  Railway  Co.,  55  Iowa,  338. 
And  liability  may  exist  though  the  ani- 
mal was  running  at  large.  Searles  v. 
Milwaukee  &  St.  Paul  Railway  Co., 
35  Iowa,  490.  What  is  "  running  at 
large."  Hammond  v.  Chicago  &  North- 
western Railroad  Co.,  43  Iowa,  1G8; 
Welsh  V.  Chicago,  Burlington,  & 
Quincy  Railroad  Co.,  53  Iowa,  632. 
In  Kansas  the  matter  has  been  regu- 
lated also,  and  the  decisions  on  the 
liability  of  the  company  under  the 
statute  are  numerous.  See  St.  Joseph 
&  Denver  Railroad  Co.  v.  Graver,  11 
Kan.  302  Hojikins  v.  Kansas  Pacific 
Railway  Co.,  18  Kan.  402;  Atchison, 
Topeka,  &  Santa  Fe  Railroad  Co.  v. 
Edwards,  20  Kan.  531 ,  Same  v.  Jones, 


^  1-^] 


INJURIES  TO   DOMESTIC   ANIMALS. 


485 


animal  of  value  by  the  comjiaiiy's  engines,  is  not  prima  facie  evi- 
dence of  negligence  on  llieir  ]»art.^  (A)  A  distinction  is  here 
taken  by  the  court  between  injui'ies  to  permanent  jirojjcrty  situ- 
ated along  the  line  of  the  railway,  as  injury  to  buildings  by  (ires 
communicated  by  the  conii)any's  engines,  and  damage  to  cattle 
which  are  constantly  changing  place,  there  being  more  evidence 
of  fault  on  the  part  of  the  company  from  the  mere  occurrence  of 
the  injury  in  the  former  than  in  the  latter  case.^ 

1  Scott  r.  Wilmington  &  Raleigh  Railroad  Co.,  4  Jones,  N.  C.  432.  To 
render  the  company  prima  facie  responsible  for  damage  done  to  cattle,  it  muiit 
appear  that  they  came  upon  the  track  tiirough  defect  of  fences  or  cattle-guards, 
which  as  between  the  owner  and  the  company  it  was  the  duty  of  the  company 
to  maintain.  Cecil  v.  Pacific  Railroad  Co.,  47  Mo.  21G;  Bellfontaine  Railroad 
Co.  I'.  Suman,  '29  Ind.  40;  Toledo  Railroad  Co.  v.  Wiokcry,  44  111.  70.  A  rail- 
way is  bound  to  fence  its  track  along  the  tow-path  of  a  canal,  abandoned  as  a 
thoroughfare.     White  Water  Valley  Railroad  Co.  v.  Quick,  30  Ind.  384. 

2  See  supra,  note  1,  and  also  Indianapolis  &  Cincinnati  Railroad  Co.  v. 
Caldwell,  9  Ind.  397. 


3(5  Kan.  527.  The  statute  of  1874  is 
constitutional.  Atchison  &  Nebraska 
Railroad  Co.  v.  Harper,  19  Kan.  529; 
and  see  Kansas  Pacific  Railway  Co. 
r.  Mower,  10  Kan.  573.  For  the  bear- 
ing of  the  herd  law  on  the  matter,  see 
Kansas  Pacific  Railway  Co.  v.  Wig- 
gins, 24  Kan.  588;  Same  v.  Landis, 
24  Kan.  40G;  Union  Pacific  Railway 
Co.  r.  Dyche,  28  Kan.  200.  In  Ten- 
nessee an  alarm  must  be  sounded,  and 
the  brakes  applied,  when  an  animal 
appears  on  the  track.'  Nashville  & 
Chattanooga  Railroad  Co.  v.  Anthony, 
1  Lea  Tenn.  510.  All  requirements 
of  the  statute  must  be  observed,  if 
possible.  East  Tennessee,  Virginia,  & 
Georgia  Railroad  Co.  v.  Scales,  2  Lea 
Tenn.  088.  Rut  the  engine  need  not 
be  reversed,  if  to  reverse  would  endan- 
ger lives  on  the  train.  Nashville  & 
Chattanooga  Railroad  Co.  r.  Troxlee, 
1  Li'ii  Tenn.  520.  That  to  reverse 
would  injure  machinery,  is  no  excuse. 
East  Tennessee,  Virginia,  &  C.oorgia 
Railroad  Co.  v.  Selcer,  7  Lea  Tenn. 
557.     As  to  need  of  constant  lookout, 


see  Louisville  &  Nashville  Railroad 
Co.  I'.  Stone,  7  Ileisk.  408;  Same  i-. 
Milton,  2  Lea  Tenn.  202. 

{b)  Burlington  &  Missouri  River 
Railroad  Co.  v.  Wendt,  12  Neb.  70; 
McKissock  v.  St.  Louis,  Kansas  City. 
&  Northern  Railway  Co  ,  73  Mo.  450; 
Schneir  v.  Chicago,  Rock  Island,  & 
Pacific  Railroad  Co.,  40  Iowa,  339. 
But  see  St.  Louis,  Iron  Mountain,  & 
Southern  Railroad  Co.  v.  Ilagan,  42 
Ark.  122;  Jones  v.  Columbia  &  Green- 
ville Railroad  Co.,  20  S.  C.  249;  East 
Tennessee,  Virginia,  &  Georgia  Rail- 
road Co.  r.  Bayliss,  74  Ala.  150.  The 
negligence  must  be  proved.  Cincin- 
nati, Hamilton,  &  Indianapolis  Rail- 
road Co.  V.  Bartlett,  58  Ind.  572; 
Turner  v.  St.  Louis  &  San  Francisco 
Railway  Co.,  76  Mo.  201;  Mobile  fi 
Ohio  Railroad  Co.  *•.  Hudson,  .')0  Mi.<s. 
572  ;  Pittsburg,  Cincinnati,  &  St. 
Louis  Railroatl  Co.  c.  McMillan.  37 
Ohio  St  551.  But  see  Kentucky  Cen- 
tral Railroad  Co.  r.  Lt-bus,  14  nn>li. 
518;  Durham  r.  Wilmington  vSc  Wel- 
dou  Railroad  Co.,  82  N.  C.  3.-2, 
[•465] 


486  INJURIES   TO    DOMESTIC   ANIMALS.  [PART   V. 

2.  Most  of  the  better  considered  cases  certainly  adopt  this  view 
of  the  subject,  and  some  perhaps  go  even  furtlier  in  favor  of 
exempting  the  company  from  liability,  where  they  were  not  origi- 
nally in  fault,  and  the  animals  were  exposed  to  the  injury  through 
the  fault  of  the  owner,  mediately  or  immediately. 

3.  For  instance,  if  the  animal  escape  into  the  highway,  and 
thus  get  upon  the  track  of  the  railway  where  it  intersects  with 
the  highway,  and  is  killed,  the  company  are  not  liable.^  (c)  And 
if  the  animals  are  trespassing  upon  a  field,  and  stray  from  the 
field  uj)on  the  track  of  the  railway,  through  defect  of  fences, 
which  the  company  arc  bound  to  maintain,  as  against  the  owner 
of  the  field,  and  are  killed,  the  company  are  not  liable,  either  at 
common  law  or  under  the  English  statute,*  (c?)  or  upon  the  ground 
that  the  defendant  exercised  a  dangerous  trade.  The  obligation 
to  make  and  maintain  fences,  both  at  common  law  and  under  the 
statute,  applies  only  as  against  the  owners  or  occupiers  of  the 
adjoining  close.^  (e) 

3  Towns  V.  Cheshire  Railroad  Co.,  1  Post.  N.  IT.  303;  Sharrod  v.  London  & 
Northwestern  Raih-oad  Co.,  4  Exch.  580;  ILilloraii  v.  New  York  &  Ilarlem 
Raih'oad  Co.,  2  E.  D.  Smith,  257.  In  Maryland  it  was  held  that  a  statute  for 
the  protection  of  animals  and  stock  did  not  include  negro  slaves.  Scaggs  v. 
Baltimore  &  Washington  Railroad  Co.,  10  Md.  268.  But  even  where  the  cattle 
are  wrongfully  at  large,  and  thus  come  upon  the  track,  yet  the  company  has 
often  been  held  responsible  for  killing  them  through  neglect  or  mismanagement 
short  of  positive  or  intentional  wrong.  Memphis  &  Charleston  Railroad  Co.  v. 
Blakeney,  43  Miss.  218;  Same  v.  Orr,  43  Miss.  279;  Raiford  v.  IMemphis  & 
Charleston  Railroad  Co.,  43  Miss.  233. 

4  Statute  8  &  9  Vict.  c.  20,  §  G8. 

s  Ricketts  v.  East  &  West  India  Docks  &  Birmingham  Junction  Railway 
Co.,  12  C.  B.  160;  a.  c.  12  Eng.  L.  &  Eq.  520.  See  also  Dawson  v.  Midland 
Railway  Co.,  21  W.  R.  56.  The  same  point  is  ruled  in  Jackson  v.  Rutland 
&  Burlington  Railroad  Co.,  25  Vt.  150.  See  also  cases  referred  to  in  ^§  127, 
128.     And  it  was  held,  in  ^lanchester,  ShefTield,  &  Lincolnshire  Railway  Co.  v. 

(c)  This  requires  some  limitation,  Mass.  118;  Maynard  v.  Boston  & 
as,  6.  g.,  where  the  animals  are  run-  l^Iaine  Railroad  Co.,  115  Mass.  458; 
ning  at  large  without  fault  of  the  McDonnell  v.  Pittsfield  &  North  Ad- 
owner,  or  where  they  are  killed  wan-  ams  Railroad  Co.,  115  Mass.  564. 
tonly  or  wilfully.  See  supra,  pi.  7,  9.  (d)  Curry  v.  Chicago  &  Northwest- 
And  see  Toledo,  Peoria,  &  Warsaw  em  Railway  Co.,  43  Wis.  665.  And 
Railway  Co.  v.  Johnston,  74  111.  83;  see  Ellis  v.  Pacific  Railroad  Co.,  55 
Railway  Co.  v.   Howard,  11   Am.   &  Mo.  278. 

Eng.    Railw.    Cas.    488;    Darling   v.  (e)  See  Ohio  &  ^Mississippi   Rail- 
Boston  &  Albany  Railroad  Co.,  121  road  Co.  v.  Jones,  63  111.  472. 
[*465] 


§  12i).]  INJUUIES   TO    DOMESTIC    ANIMALS.  487 

*  4.  So  where  the  statute  requires  railways  to  fenco  their  road, 
where  the  same  passes  through  "  enclosed  or  improved  lands,"  il 
injury  ha}>pen  to  another's  cattle  tlirough  want  of  fences,  upon 
common  or  unenclosed  land,  it  is  not  legally  imputable  to  the 
negligence  of  the  company.*^ 

5.  But  if  the  railway  are  bound  to  maintain  fences,  as  against 
the  owner  of  the  cattle,  and  they  come  upon  the  njud  tliruugli 
defect  of  such  fences,  and  are  injured,  the  company  are,  in  general, 
liable  without  further  proof  of  negligence.^ 

Wallis,  1-1  C.  B.  243;  s.  c.  25  Eng.  L.  &  Eq.  37.3,  that  a  railroad  is  not  bouud 
to  fence  against  cattle  straying  upon  a  highway  running  along  the  railway,  nor 
liable  for  an  injury  sustained  by  cattle  in  getting  from  such  highway  on  the 
railway,  through  a  defect  of  the  fences  maintained  by  the  company;  although 
the  cattle  strayed  on  the  highway  without  any  fault  of  the  owner.  Brooks  «'. 
New  York  &  Erie  llailway  Co.,  13  Barb.  591.  But  in  the  Midland  Railway 
Co.  V.  Daykin,  17  C.  B.  12G;  8.  c.  33  Eng.  L.  &  Eq.  193,  it  was  held,  that  the 
company  were  liable  where  a  colt  strayed  from  a  field,  on  a  public  road, 
abutting  which  was  a  yard  not  fenced  from  the  railway,  the  gate  of  which 
was,  through  the  neglect  of  the  company's  servants,  left  open,  and,  while 
the  colt  was  being  driven  back  to  tlie  field  by  the  servants  of  the  owner,  it 
escaped  into  tlie  yard,  and  thence  upon  the  railway,  where  it  was  killed  by  a 
passing  train.  But  in  Ellis  v.  London  &  Southwestern  Railway  Co.,  2  II.  & 
N.  424,  where  a  railway  company  constructed  its  road  across  a  public  footway, 
in  such  a  manner  that  no  security  against  injury  to  passers  on  the  way  was 
afforded  within  the  provisions  of  the  English  statute,  8  «&  9  Vict.  c.  20,  §§  46, 
01,  OS,  by  means  of  a  bridge  or  stile,  but  the  company  erected  high  gates  which 
obstructed  the  footway  and  gave  the  key  to  plaintiffs  servant,  winch  had  been 
lost  and  the  gates  left  open,  without  notice  to  the  railway  company,  whereby 
the  plaintiff's  colts  escaped  from  his  lands  adjoining,  and  came  on  the  rail- 
way and  were  killed  by  a  passing  train,  the  jury  having  found  that  the  plain- 
tiff, by  his  own  negligence  and  tiuit  of  his  servants,  had  contributed  to  the  acci- 
dent, it  was  held  that  he  could  not  recover,  notwithstanding  the  omission  of 
duty  by  the  company. 

"  Perkins  v.  Eastern  Railroad  Co.,  21)  Mc.,  ;307.  And  if  by  usage  cattle 
have  the  right  to  run  on  unenclosed  land,  the  owner  incurs  the  risk  of  all 
accidents.  Knight  v.  Abert,  G  Penn.  St.  472;  Philadelphia  &  Gennantown 
Railroad  Co.  i-.  Wilt,  -4  AVhart.  143. 

■^  Suydam  v.  Moore,  8  Harb.  358 ;  "Waldron  r.  Rensselaer  &  Sar.itoga  Rail- 
road Co.,  8  Barb.  390;  Horn  v.  Atlantic  &  St.  Lawrence  Railroad  Co..  35 
N.  II.  109;  s.  c.  30  X.  II.  440;  Smith  v.  Eastern  Railro.ad  Co.,  35  N.  II.  35G. 
But  where  the  cattle  come  on  the  railway,  at  a  point  not  proper  to  be  fenced, 
as  at  the  intersection  of  a  highway,  or  at  a  mill  yard,  the  company  is  not  liable 
unless  the  plaintiff  proves  some  fault  besides  the  want  of  fences.  Indianapolis 
&  Cincinnati  Railro.ad  Co.  v.  Kinney,  8  Ind.  402;  Lafayette  &  Indianapolis 
Railroad  Co.  r.  Shrinor.  G  Ind.  141.     But  the  owner  of  cattle  is  not  precluded 

[♦466] 


488  INJURIES   TO    DOMESTIC    ANIMALS.  [PART  V. 

6.  But  where  the  statute  imposes  the  duty  of  building  fence 
upon  the  railway,  they  may  lawfully  stipulate  with  the  land-owners 
to  maintain  it,  and  if  such  land-owner  suffer  his  cattle  to  be  where 
tliey  may  come  upon  the  railway  without  building  the  fence,  he 
*  cannot  recover  of  the  company.^  So,  too,  if  the  plaintiff  leave 
down  the  bars  at  a  cattle  crossing,  Avhereby  his  cattle  go  upon  the 
railway  and  are  killed,  he  cannot  recover.^  (/) 

7.  And  where  the  cattle  go  upon  a  railway  through  defect  of 
fences,  which  the  owner  is  bound  to  maintain,  and  suffer  damage, 
the  owner  has  no  claim  upon  the  company,  unless,  perhaps,  for 
what  has  sometimes  been  denominated  gross  negligence,  or  wilful 
injury,  for  in  such  cases  the  cattle  are  regarded  as  trespassers,^" 
and  the  owner  the  cause  of  the  injury  sustained,  unless  the  rail- 
way might  have  prevented  it.     But  where  there  was  no  reasonable 

from  recovering  for  any  damage  inflicted  upon  his  cattle  by  the  company, 
•whose  duty  it  was  to  fence  the  line  where  it  occurred,  because  he  turned  his 
cattle  upon  his  land  before  the  fence  was  built.  McCoy  v.  California  &  Pacific 
Railroad  Co.,  40  Cal.  5-32. 

8  Tower  v.  Trovidence  &  Worcester  Railroad  Co.,  2  R.  I.  404,  411 ;  Clark 
V.  Syracuse  &  Utica  Railroad  Co.,  11  Barb.  112;  Cincinnati,  Hamilton,  &  Day- 
ton Railroad  Co.  v.  '\Vaterson,  4  Ohio  St.  424.  So,  also,  where  the  duty  of 
maintaining  the  fence  along  the  railway  is  upon  the  land-owner,  and  it  is 
burned  down  by  fire,  communicated  by  the  company's  engines,  and  he  suffers 
his  fields  to  remain  unfenced,  whereby  his  cattle  go  upon  the  track  and  are 
killed,  he  cannot  recover.  If  the  company  is  in  fault,  and  liable  to  damages 
in  regard  to  the  fire,  this  does  not  oblige  it  to  rebuild  the  fence,  nor  will  it 
justify  the  plaintiff  in  suffering  his  fields  to  remain  unfenced  except  at  liis 
own  peril.     Terry  v.  New  York  Central  Railroad  Co.,  22  Barb.  574. 

9  Waldron  v.  Portland,  Saco,  &  Portsmouth  Railroad  Co.,  35  Me.  422. 

^^  Tonawanda  Raih-oad  Co.  v.  Munger,  5  Denio,  255;  s.  c.  4  Comst.  319; 
Clark  r.  Syracuse  &  Utica  Railroad  Co.,  11  Barb.  112;  Williams  v.  Michigan 
Central  Railroad  Co.,  2  Mich.  259.  In  this  case  the  horses  were  wrongfully  on 
the  railway,  and  the  court  say  the  company  "  cannot  be  held  liable  for  any 
accidental  injury  which  may  have  occurred,  unless  the  lawful  riglit  of  running 
the  train  was  exercised  without  a  proper  degree  of  care  and  piecaution,  or  in 
an  unreasonable  or  unlawful  manner."  See  also  Garris  v.  Portsmouth  &  Roa- 
noke Railroad  Co.,  2  Ire.  324;  Cincinnati,  Hamilton,  &  Dayton  Railroad  Co. 
V.  Waterson,  4  Ohio  St.  424;  Cleveland,  Columbus,  &  Cincinnati  Railroad 
Co.  V.  Elliott,  4  Ohio  St.  474;  New  Albany  &  Salem  Railroad  Co.  v.  McNamara, 
11  Ind.  543. 

(/)  But  otherwise  where  a  gate  is     Wabash,    &  Western  Railway  Co.  v. 
left  open  by  trespassers  in  the  plain-     Milligan,  52  Ind.  505. 
tiff's   absence   from  home.      Toledo, 
r*467] 


§  120.]  INJURIES   TO    DOMESTIC    ANIMALS.  489 

ground  to  suppose  that  the  portion  of  fence  which  it  was  the  duty 
of  the  company  to  build  would  have  protected  the  animals,  and 
the  owner  was  shown  to  have  been  guilty  of  negligence  in  not 
taking  care  of  them,  it  was  held  there  could  be  no  recovery,  since 
his  negligence  was  the  direct  and  proximate  cause  of  the  injury." 
8.  And  it  was  held  to  be  gross  negligence  for  the  owner  of  cattle 
to  suffer  them  to  go  at  large,  in  the  vicinity  of  a  railway,  whether 
the  same  was  fenced  or  not.^^  And  it  will  impose  no  additional 
*  obligation  ujion  a  railway  company,  in  regard  to  cattle  suffered 
to  go  at  largo  in  the  public  highways,  by  order  of  the  county  com- 
missioners having  charge  of  the  same,  if  the  company  are  guilty 

"  Juliet  &  Xortliern  Indiana  Railroad  Co.  i\  Jones,  20  111.  221.  And  even 
■where  cattle  came  upon  a  track  without  the  fault  of  the  owner,  but  escaped 
from  their  enclosure  and  wandered  upon  the  track,  and  were  there  damaged 
by  the  carelessness  of  the  engineer  in  not  slackening  the  speed  of  the  train,  the 
company  was  held  not  responsible.  Price  v.  New  Jersey  Railroad  Co.,  2  Vroom, 
229.  But  where  there  is  evidence  of  recklessness  or  gross  negligence,  in  such 
cases  the  company  will  be  held  responsible.  Tiiis,  however,  is  not  to  be  car- 
ried to  such  an  extent  as  to  embarrass  the  engineer.  If  he  act  in  good  faith 
and  according  to  his  best  wisdom  and  discretion,  the  company  cannot  be 
held  liable  for  any  injury.  The  question  is  well  illustrated  in  Card  v.  New 
York  &  Harlem  Railroad  Co.,  50  Barb.  39.  See  also  Eames  i;.  Salem  &  Lowell 
Railroad  Co.,  98  Mass.  560;  Chicago  &  Alton  Railroad  Co.  v.  "L'tley,  38  III. 
410.  But  it  seems  to  be  unquestionable  that  even  where  the  owner  of  cattle 
is  guilty  of  negligence  or  even  positive  foolhardiness  and  wrong  in  allowing 
his  cattle  to  come  upon  the  track,  this  will  not  excuse  the  company  for  injur- 
ing them  needlessly,  or  even  carelessly.  The  company  is  still  bound  to  exer- 
cise ordinary  care  and  prudence  in  avoiding  the  infliction  of  injury  ujMjn  them 
until  they  can  be  removed  from  the  road.  Needham  r.  Santa  Fe  &  San  Jos<J 
Railroad  Co.,  37  Cal.  409.  See  also  Illinois  Central  Railroad  Co.  r.  Middles- 
worlli.  40  111.  494. 

1^  .Marsh  V.  New  York  &  Erie  Railroad  Co.,  14  Barb.  304;  Talmadge  v. 
Rensselaer  &  Saratoga  Railroad  Co.,  13  Barb.  493;  Louisville  &  Frankfort 
Railroad  Co.  v.  :Milton,  14  B.  Monr.  75.  This  is  where  the  plaintiff  below 
suffered  the  company  to  build  a  railway  through  his  field  without  stipulating 
that  it  should  fence  the  track,  and  his  cattle  runnint;  upon  the  track  wliile 
depasturing  in  the  field  were  killed,  and  the  court  held  the  company  was  not 
liable,  "unless  the  injury  couM  have  been  avoidi-d  with  reasonable  care." 
But  in  llousatonic  Railroad  Co.  v.  Waterbury,  23  Conn.  lOl,  it  was  held  tliat 
in  such  case  the  company  holds  its  easement  subject  to  the  land-owner's  right 
to  cross  and  recross  to  and  from  the  different  sections  of  his  farm,  pwvided 
the  right  is  reasonably  exercised,  and  that  the  landowner  is  not  chargeable 
with  negligence  in  letting  his  cattle  run  on  his  land  unfenced,  unless  he  knew 
they  weie  accustomed  to  keep  near  the  track,  thus  imix)sing  a  duty  of  watch- 
fulness on  both  paities. 

[•468] 


490 


INJURIES   TO    DOMESTIC    ANIMALS. 


[part  V. 


of  no  negligence  ;  in  such  cases,  the  owners  of  cattle  killed  at  the 
road-crossings,  by  trains  of  the  company,  cannot  recover  of 
Ihem.^^ 

9.  It  has  been  held  not  to  be  sufficient  in  such  cases  to  charge 
the  company,  to  show  that  they  were  running  at  an  unreasonable 
rate  of  speed,  or  without  proper  care  in  other  respects.^^  (/y)     The 

13  INIichigan  Southern  &  Northern  Indiana  Raih'oarl  Co.  r.  Fisher,  27  Ind. 
90. 

"  Vandegrift  v.  Rediker,  2  Zab.  185;  Clark  v.  Syracuse  &  Utica  Itaih'oad 
Co.,  11  Barb.  112;  Williams  v.  Michigan  Central  Railroad  Co.,  2  Mich.  259; 
Lafayette  &  Indiana  Railroad  Co.  v.  Shriner,  6  Ind.  141.  Here  it  was  held 
that  the  company  is  liable  for  gross  negligence,  even  where  the  cattle  are 
wrongfully  on  the  road. 


((/)  Thus  it  has  been  held  that  in 
the  absence  of  statute  no  conceivable 
rate  of  speed  is  negligence  per  se. 
McKonkey  v.  Chicago,  Burlington,  & 
Quincy  Railroad  Co.,  40  Iowa,  205. 
But  it  has  been  held  also  that  the 
company  will  be  liable  where  the 
train  was  moving  at  a  greater  than 
the  lawful  rate.  Houston  &  Texas 
Central  Railway  Co.  v.  Terry,  42  Tex. 
451.  And  also  where  on  a  straight 
track,  in  the  night,  the  rate  of  speed 
was  such  that  the  train  could  not  be 
stopped  within  a  distance  at  which  the 
engine  driver  could  see  cattle  on  the 
track  by  the  aid  of  the  headlight. 
Memphis  &  Charleston  Railroad  Co.  v. 
Lyon,  62  Ala.  71.  But  see  Louisville 
&  Nashville  Railroad  Co.  v.  Milam, 
9  Lea  Tenn.  223,  where  it  is  held 
that  such  an  arbitrary  rule  is  unsound, 
and  that  the  rate  of  speed  must  depend 
on  circumstances.  And  see  Alabama 
Great  Southern  Railroad  Co.  v.  Mc.\l- 
pine,  75  Ala.  113.  And  see  to  same 
effect  Peoria,  Decatur,  &  Evansville 
Railroad  Co.  v.  Miller,  11  Brad.  375. 
Imperfect  light  may  be  considered  in 
determining  negligence  on  the  part  of 
the  company.  St.  Louis,  Iron  !Moun- 
tain,  &  Southern  Railway  Co.  v.  Vin- 
cent, 30  Ark.  451.  As  to  theslacken- 
[*4G8] 


ing  of  the  speed  at  crossings,  see 
Chicago  &  Alton  Railroad  Co.  v.  Kil- 
1am,  92  111.  245.  It  is  not  necessarily 
negligence  to  run  at  the  rate  of  twenty- 
five  miles  an  hour.  Goodwin  v.  Chi- 
cago, Rock  Island,  &  Pacific  Railroad 
Co.,  75  Mo.  73,  See  Fritz  v.  St.  Paul 
&  Pacific  Railroad  Co.,  22  Minn.  404; 
South  &  North  Alabama  Railroad  Co. 
V.  Thompson,  02  Ala.  494.  Negli- 
gence is  presumed  when  the  train  was 
running  in  a  city  or  village  at  a  rate 
greater  than  permitted  by  statute. 
Cowell  V.  Burlington,  Cedar  Rapids, 
&  Minnesota  Railroad  Co.,  38  Iowa, 
120;  Toledo,  Peoria,  &  Warsaw  Rail- 
way Co.  V.  Deacon,  63  111.  91;  New 
Orleans,  Mobile,  &  Texas  Railroad 
Co.  v.  Touline,  .59  INIiss,  284 ;  St.  Louis, 
Vandalia,  &  Terre  Haute  Railroad  Co. 
V.  Morgan,  12  Brad.  250.  But  see 
Burlington  &  Missouri  River  Railroad 
Co.  V.  Wendt,  12  Neb.  70.  If,  how- 
ever, an  animal  suddenly  leap  upon 
the  track  so  as  to  endanger  the  train, 
the  speed  may  be  increased.  Chicago, 
St.  Louis,  &  New  Orleans  Railroad 
Co.  V.  Jones,  59  Miss.  405.  And  see 
Chicago,  Burlington,  &  Quincy  Rail- 
road Co.  V.  Bradfield,  63  111.  220. 
Want  of  skill  in  the  engine-driver  is 
of  no  consequence  where  it  does  not 


§  l-^<^-] 


INJUIUKS   TO    DOMESTIC    ANIMALS. 


491 


only  question  in  such  case  is,  we  api)rehend,  whether  tlic  company, 
after  discovering  the  peril  of  the  animals,  might  have  so  conducted 
as  to  have  prevented  the  injury,^'*  (/i)     The  same  rule  obtains. 


contribute  to  the  accident.  Culliaiie 
V.  New  York  Central  &  Hudson  River 
Railroad  Co.,  00  N.  Y.  133.  Nor  is 
it  negligence  to  run  a  train  with  the 
engine  in  the  rear,  where  there  is  a 
man  at  the  other  end  to  keep  a  look- 
out and  the  train  is  moved  slowly. 
Falconer  v.  liuropean  &  North  Amer- 
ican Railway  Co.,  1  Pug.  179.  Mere 
failure  to  sound  the  whistle  or  ring 
the  bell  at  a  public  crossing  is  not 
such  negligence  as  will  render  the 
company  liable.  Jackson  v.  Chicago 
&  Nortlnvestern  Railway  Co.,  36  Iowa, 
451.  But  see  Springfield  &  Illinois 
Southeastern  Railway  Co.  v.  Andrews, 
G8  111.  56 ;  Stoneman  v.  Atlantic  & 
Pacific  Railroad  Co.,  58  Mo.  503. 
But  when  necessary  to  the  safety  of 
person  or  property  an  alarm  should 
be  given.  Gates  v.  Burlington,  Cedar 
Rapids,  &  Minnesota  Railway  Co.,  39 
Iowa,  45.  When  the  engineer  sees  an 
animal  near  the  track  and  in  danger 
of  going  on  it,  he  must  use  all  means 
to  frighten  it  off.  Alabama  Great 
Southern  Railroad  Co.  i'.  Powers,  73 
Ala.  241.  But  otherwise  where  the 
animal  is  quietly  grazing.  Hannibal 
&  St.  Joseph  Railroad  Co.  v.  Young, 
79  Mo.  336.  Wiiether  failure  to 
sound  an  alarm  is  negligence,  is  a 
question  for  the  jury.  Holman  v. 
Chicago,  Rock  Island,  &  Pacific  Rail- 
road Co.,  62  Mo.  56"2;  Indianapolis, 
Cincinnati,  &  Lafayette  Railroad  Co. 
V.  Hamilton,  44  Ind.  76;  Chicago  & 
Alton  Railroad  Co.  v.  ISIcDaniels,  63 
111.  122;  Terre  Haute  &  Indianapolis 
Railroad  Co.  r.  Jones,  11  Brad.  322. 
Nece.ssity  therefore  depends  on  cir- 
cumstances. Louisville,  Nashville,  & 
Great  Southern  Railroad  Co.  v.  Reid- 


mond,  11  Lea  Tenn.  205;  Ciiicago 
&  Alton  Railroad  C'o.  i'.  Henderson, 
66  111.  494.  It  is  not  negligence  not 
to  sound  an  alarm  when  it  would  be 
unavailing.  Flattes  v.  Chicago,  Rock 
Island,  &  Pacific  Railroad  Co.,  35 
Iowa,  101.  Failure  to  sound  an  alarm 
at  least  eighty  rods  from  a  crossing  is 
negligence  under  the  Missouri  statutes. 
Owens  V.  Hannibal  &  St.  Joseph  Rail- 
road Co.,  58  Mo.  386.  And  see  Illi- 
nois Central  Railroad  Co.  r.  Gillis, 
68  111.  317 ;  Western  &  Atlantic  Rail- 
road Co.  r.  Jones,  65  Ga.  031. 

(/i)  Might  have  so  conducted,  i.  e., 
without  danger  to  the  train.  It  has 
been  held  that  the  company  is  bound 
to  exercise  vigilance,  and  bound  al.<o 
not  to  act  wilfully  or  wantonly,  but 
that  it  need  not  stop  nor  slacken  speed 
where  it  would  endanger  the  train  or 
the  property  or  the  lives  of  persons  on 
it.  Saudham  v.  Ciiicago,  Rock  Island, 
&  Pacific  Railroad  Co.,  38  Iowa,  88; 
Fossier  c.  Morgan's  Louisiana  &  Texas 
Railway  Co.,  1  McGloin,  349;  With- 
erell  v.  Milwaukee  &  St.  Paul  Railway 
Co.,  24  Minn.  410;  O'Connor  v.  Chi- 
cago, Milwaukee,  &  St.  Paul  Railway 
Co.,  27  Minn.  100;  Wallace  r.  St.  Louis, 
Iron  Mountain,  &  Southern  Railway 
Co.,  74  Mo.  591;  Pryor  v.  St.  Loui.««, 
Kansas  City,  &  Northern  Railway  Co., 
09  Mo.  245.  The  cases  in  supjwrt  of 
the  general  proposition  that  the  com- 
pany must  exercise  due  care,  either  by 
slackening  or  stopping,  or  by  sound- 
ing an  alarm  for  the  protection  even 
of  trespassers,  are  numerous.  See 
Shuman  r.  Indianapolis  &  St.  Louis 
Railroad  Co.,  11  Brad.  472;  South  & 
North  Alabama  Railroad  Co.  r.  Jones, 
56  Ala.  507;  Missouri  Pacific  Railway 
[•468] 


492  INJURIES    TO    DOMESTIC    ANIMALS.  [PART    V. 

wliich  docs  in  actions  for  personal  injuries,  where  there  is  fault 
in  both  parties.  This  subject  is  extensively  discussed  in  Yicks- 
burir  and  Jackson  Railway  v.  Patton,^-^  and  the  doctrine  enunciated, 
that  the  owner  of  domestic  animals  not  of  a  dangerous  character 
may  lawfully  suffer  them  to  depasture  upon  the  unenclosed  com- 
mons, and  if  they  wander  upon  the  premises  of  others  not  en- 
closed, the  owner  of  the  animals  is  not  liable  for  any  damage  in 
consequence.  But  a  railway,  crossing  such  common,  has  the 
same  right  to  its  unobstructed  use  as  the  owner  of  cattle,  and  they 
may  lawfully  run  their  cars  at  all  times,  and  at  all  lawful  rates  of 
speed  ;  but  if  their  own  track  be  unenclosed  and  cattle  liable  to 
wander  upon  it,  the  company  should  have  proper  regard  to  so 
running  their  trains  as  not  to  injure  them.  And  if  cattle  are 
injured  through  any  default  of  the  company,  it  is  liable.  It  is 
the  duty  of  the  company  *to  keep  their  engines  in  good  repair, 
and  to  have  a  sufficient  number  of  servants  to  manage  their  trains 
with  safety ;  and  if  through  any  default  in  any  of  these  duties  the 
cattle  of  another  are  injured,  it  will  be  liable.  It  was  held  in  this 
case,  contrary  to  the  general  course  of  practice,  that  it  may  be 
proved  that  the  general  character  of  the  engineer  in  charge  of 
the  train  was  that  of  a  reckless  and  untrustworthy  agent.  And 
it  is  here  said  that  tlie  company  arc  liable  to  exemplary  damages 
for  such  an  injury  occurring  through  the  gross  negligence  or  wan- 
ton misconduct  of  its  agents  ;  both  of  which  propositions  seem 
not  entirely  reconcilable  with  the  general  course  of  decision. 

10.  And  it  has  been  held  where  the  statute,  in  general  terms, 
requires  railways  to  keep  gates  at  road-crossings  constantly  closed, 

16  31  Miss.  156;  Gonuan  v.  Pacific  Raih-oad  Co.,  26  Mo.  441. 

Co.  V.  Wilson,  28  Kan.  637;  Trout  v.  420;  Washington  v.  Baltimore  &  Ohio 

Virginia  &  Tennessee  Railroad  Co  ,  Railroad  Co.,  17  W.  Va.  190;   Ken- 

2.3   Grat.    619;    Little   Rock   &   Fort  tucky  Central  Railroad  Co.  y.  Lebus. 

Smith  Railway  Co.  r.  Finley,  37  Ark.  14  Bush,  518;  Detroit,  Eel  River,  & 

562;  Same  r.  Trotter,  lb.  593.     And  Illinois  Railroad  Co.  v.  Benton,  61  111. 

hence  it  has  been  often  held  that  the  293;  Louisville,  New  Albany,  &  Chi- 

company  will  be  liable  for  cattle  injured  cago    Railway   Co.   i;.    Whitesell,   G8 

where  it  has  failed  to  observe  proper  Ind.  297.     But  see  Cincinnati,  Hamil- 

care  or  vigilance,   though  the   cattle  ton,  &  Dayton  Railroad  Co.  v.  Street, 

were  allowed  to  run  at  large.     Mobile  50  Ind.  225;    Williams   v.    Northern 

&  Ohio  Railroad  Co.  v.  Williams.  53  Pacific  Railroad  Co.,  11  Am.  &  Eng. 

Ala.   595  ;    Kuhn    v.    Chicago,    Rock  Railw.  Cas.  421. 
Island,  &  Pacific  Railroad  Co.,  42  Iowa, 
[*469] 


§  120.]  INJURIES   TO    DOMESTIC    ANIMALS.  493 

that  one  whose  horses  leaped  from  liis  (idil  into  the  hi^hwav, 
and  then  strayed  upon  the  railway,  by  reason  ol"  the  gates  not  be- 
ing kcj)t  constantly  closed,  and  wcmh;  killed,  might  recover  of  the 
company. ^'^  In  such  case  it  was  held,  that  as  to  the  company 
the  liorscs  were  lawfully  on  the  highway,  as  the  provision  in  the 
statute  in  regard  to  keeping  the  gates  shut  was  intended  for  the 
protection  of  all  cattle,  horses,  &c.,  passing  along  the  highway, 
whether  strayed  there  or  not,  unless  perhaps  when  voluntarily 
suffered  to  run  at  large  in  the  highway.  And  the  duty  of  keeping 
cattle-guards  at  road-crossings  has  been  considered  to  extend  to 
the  protection  of  all  animals  in  the  street,  and  to  be  a  duty  which 
the  railway  owe  the  public  generally,  and  not  merely  the  owners 
of  cattle  driven  along  the  highway,  which,  in  strictness,  is  the 
only  condition  in  which  cattle  are  rightfully  in  the  highway,  at 
common  law.^" 

"  Fawcett  v.  York  &  North  Midland  Railway  Co.,  10  Q.  B.  GIO;  s.  c.  2  Eng, 
L.  &  Eq.  289.  But  it  is  a  question  for  the  jury,  under  the  circumstances, 
whether  they  believe  the  gates  were  left  open  by  the  fault  of  the  company's 
servants  or  the  tort  of  a  stranger.  Waif.  Railw.  179,  citing  two  NUi  Prius 
cases  (1842),  (184.3). 

"  Trow  I'.  Vermont  Central  Railroad  Co.,  24  Vt.  487.  And  in  Railroad  Co. 
V.  Skinner,  19  Penn.  St.  298,  it  is  said  that  if  cattle  are  suffered  to  go  at  large 
and  are  killed  or  injured  on  a  railway,  the  owner  has  no  remedy  against  the 
company,  and  may  himself  be  made  liable  for  damage  done  by  them  to  the 
company;  and  it  is  unimportant  whether  the  owner  knew  of  the  jeopardy  of 
the  cattle;  and  that  it  is  error  to  submit  the  question  of  negligence  to  the  jury, 
unless  there  is  some  evidence  of  such  fact.  In  Richmond  &  Petersburg  Rail- 
road Co.  V.  Jones,  G  Am.  Law  Reg.  31G,  a  case  in  Virginia,  this  matter  is  fully 
discussed.  It  appeared  that  the  company  had  been  assessed  in  <lamages  to 
the  land-owners  along  the  line  of  the  road,  in  consecpience  of  additional  fence 
being  required,  by  reason  of  the  construction  of  the  railway.  The  animal, 
for  killing  which  the  suit  was  brought,  was  found  dead  near  the  crossing  of 
the  highway  and  railway  in  such  a  state  as  to  show  that  it  had  been  killed  hy 
the  company's  engines  very  near  the  crossing.  The  plaintiff  had  suffered  the 
beast  to  run  at  large  and  graze  on  the  unenclosed  lands  in  the  neiglibnrli(X»d 
of  the  railway,  her  own  land  not  lying  in  immediate  contact  with  the  line  of 
the  railway.  It  was  held  that  prima  facie  the  company  was  not  liahle,  even 
when  cattle  were  killed  at  a  road-crossing;  that  both  the  owner  of  the  cattle 
and  the  company,  in  such  case,  being  apparently  in  the  exercise  of  their  legal 
rights,  the  law  would  presume  no  breach  of  duty,  and  thus  imjx)se  on  the  party 
who  alleged  such  breach  the  burden  of  proof;  that  to  entitle  the  owner  in  such 
case  to  recover  of  the  comi>any,  ho  must  prove  want  of  care  or  skill  on  the  part 
of  the  company;  and  that  the  statute  depriving  the  company  of  an  action 
against  the  owner  of  cattle,  for  damages  caused  by  their  straying  on  the 

[*4(;0] 


494  INJURIES   TO    DOMESTIC   ANIMALS.  [PART   V. 

*  11.  In  the  New  York  &  Erie  Railway  v.  Skinner, ^^  Gibson,  J., 
lays  down  the  rule  in  the  broadest  terms,  that  railways,  indepen- 

road,  does  not  render  it  lawful  for  cattle  to  be  allowed  to  go  there  unrestrained 
by  fences. 

'*=  19  Penn.  St.  298;  s.  c.  1  Am.  Law  Reg.  97.  But  in  Banner  v.  South 
Carolina  Railroad  Co.,  4  Rich.  329,  it  was  held,  that  the  fact  that  cattle  pas- 
turing on  one's  own  land  are  injured  by  a  train,  h  prima  facie  evidence  of  the 
liability  of  the  company,  and  that  the  company  could  only  excuse  itself  by 
showing,  from  the  manner  of  the  injury,  that  it  \va;3  not  guilty  of  negligence; 
that  for  this  purpose  the  company  must  show,  not  only  that  the  injury  was 
not  intentional,  but  that  it  was  unavoidable,  and  occurred  without  the  least 
fault  on  the  part  of  the  engineer;  but  that  to  the  maintenance  of  an  action  on 
the  case  for  such  injury,  it  is  requisite  to  show,  that  it  arose  from  the  negli- 
gence of  the  company,  and  if  it  appear  to  have  been  wilful,  or  accidental,  this 
action  will  not  lie.  This  seems  to  be  assuming  the  extreme  opposite  of  the  case 
last  cited.  The  truth  will  be  found  to  lie  between  them,  doubtless.  But  the 
rule  in  Banner's  case  does  not  apply  where  the  animal  killed  is  a  dog.  Wilson 
V.  Railroad  Co.,  10  Rich.  52.  But  it  does  apply  to  the  killing  of  a  horse  at 
night.  Murray  v.  Same,  10  Rich.  227.  By  the  law  of  South  Carolina,  cattle 
must  be  fenced  out,  not  fenced  in.  The  entry,  therefore,  of  cattle  on  an  unen- 
enclosed  railway  track,  is  no  trespass.  Murray  v.  South  Carolina  Railroad  Co., 
10  Rich.  227.  And  it  was  held,  that  the  owner  of  a  horse,  permitted  to  roam  at 
large  over  unenclosed  land,  is  not  guilty  of  such  negligence  as  will  embarrass 
his  recovery,  should  the  horse  be  killed  by  the  negligence  of  another.  lb.  The 
Georgia  statute  of  1847  makes  railway  companies  liable  for  all  damages  done 
to  live-stock  or  other  property.  But  it  was  held  they  were  not  liable  when 
the  damage  was  caused  by  the  design  or  negligence  of  the  owner.  Macon  & 
Western  Railroad  Co.  v.  Bavis,  13  Ga.  68.  And  in  Xew  York  it  is  held,  that  the 
statute,  making  railway  companies  liable  for  all  damage  done  to  cattle,  horses, 
and  other  animals,  until  they  shall  fence  their  roads,  renders  them  liable  to 
the  owner  of  cattle  which  strayed  into  an  adjoining  close,  where  they  were 
trespassers,  and  thence  upon  the  railway,  or  from  the  highway  upon  the  rail- 
way ;  that  it  makes  no  difference  how  the  cattle  came  upon  the  railway,  unless 
it  is  by  the  direct  act  or  neglect  of  the  owner,  so  long  as  the  company  does  not 
fence  its  road  according  to  the  requirements  of  the  statute.  Corwin  i;.  New 
York  &  Erie  Railway  Co.,  13  N.  Y.  42.  In  this  case  the  company  had  con- 
tracted with  the  land-owner  to  build  the  fence,  which  he  had  not  done,  and  it 
was  admitted,  that  if  he  had  owned  the  cattle  he  could  not  recover.  It  is  some- 
what remarkable,  that  the  rights  of  the  owner  of  cattle  trespassing  should  be 
superior  to  those  of  the  owner  of  the  land.  But  in  Shepard  v.  Buffalo,  Niw 
York,  &  Erie  Railway  Co.,  3-5  N.  Y.  641,  the  court  advance  a  step  further  in 
the  same  direction,  and  declare,  it  is  no  defence  that  the  party  whose  cattle 
are  killed  was  legally  bound  to  build  the  fence  himself,  under  a  contract  be- 
tween his  assignor  and  the  company.  And  it  seems  to  be  the  disposition  of 
the  court  to  give  the  statute  such  an  extensive  operation  that  the  company 
shall  be  absolutely  responsible  for  all  cattle  injured,  until  it  causes  the  erec- 
[*470] 


§  12G.]  INJURIES  TO   DOMESTIC   ANIMALS.  495 

dent  *  of  statutory  requisitions,  and  as  against  the  adjoining  lan«l- 
owncrs,  arc  under  no  duty  whatever  to  fence  their  road,  nor  are 
they  bound  to  run  with  any  reference  whatever  to  the  possibility 
of  cattle  getting  upon  the  track.  Every  man  is  bound,  at  his 
peril,  to  keep  his  cattle  off  the  track,  and  if  he  do  not,  and  they 
suffer  damage,  he  has  no  claim  upon  the  company,  or  their  ser- 
vants, and  is  liable  for  damages  done  by  them  to  the  comjjany  or 
its  })assengers.  The  opinion  contains  many  sensible  suggestions, 
and  is  curious  for  the  enthusiasm  and  zeal  manifested  by  one  al- 
ready beyond  the  ordinary  limit  of  human  life.  These  views  have 
sometimes  been  adopted  in  the  jury  trials  in  other  states,  and, 
as  reported  in  the  newspapers,  in  a  recent  case  in  Wisconsin, 
Prichard  v.  La  Crosse  and  Milwaukee  Railway.  IJut  they  arc 
certainly  not  maintained  to  the  full  extent,  in  any  country  where 
the  maxim  sic  iitere  tuo  ut  alieniun  non  Icedas  prevails,  even  to 
the  limited  extent  recognized  in  the  common  law  of  England. 

*  It  was  held  in  Gorman  v.  Pacific  Railway,  that  the  comj)any 
were  not  bound  to  fence  their  road ;  but  it  was  also  held  that 
the  jury  should  consider  the  fact  that  the  road  was  not  fenced, 
in  determining  whether  the  company  exercised  proper  care  under 
the  existing  circumstances ;  and  it  was  said  that  such  companies 
should  exercise  the  utmost  care  and  diligence  in  the  exercise 
of  their  own  privileges  to  avoid  doing  injury  to  others.^^ 

12.  It  has  been  considered  that  a  railway  is  not  responsible  for 
injuries  to  horses,  in  consequence  of  their  being  frightened  on  the 
road  by  the  noise  of  the  engine  and  cars,  in  the  prudent  and 
ordinary  course  of  their  operations.^ 

tion  of  proper  fences  according  to  the  requirements  of  the  statute.  This  seems 
too  extreme  to  last  or  to  be  followed  elsewhere.  The  same  rule  is  realKrmed  in 
Tracy  v.  Troy  &  Boston  Railroad  Co.,  38  N.  Y.  433.  It  is  here  said  that  the 
inconvenience  of  building  fences  at  railway  crossings  will  not  excuse  the  com- 
pany from  compliance  with  the  express  requirements  of  the  statute.  Nor  will 
another  company  using  the  track  be  in  any  better  condition  than  the  first  com- 
pany,    s.  p.  Toledo,  Peoria  &  Warsaw  Railroad  Co.  v.  Rumbold,  40  111.  143. 

"  26  Mo.  441.  And  the  same  rule  of  extreme  care  applies  in  tiiose  states 
where  cattle  are  by  law  allowed  to  go  at  large  in  the  highways,  and  this  iluty 
of  care  applies  both  to  the  railway  companies  and  the  owners  of  the  animals, 
each  to  so  exercise  their  own  rights  as  not  to  injure  the  other.  IIannil>al  & 
St.  Joseph  Railroad  Co.  v.  Kenney,  41  .Mo.  271;  Michigan  Southern  &  North- 
ern Indiana  Railroad  Co.  v.  Fisher,  27  Ind.  90. 

"0  Burton  v.  Philadelphia,  AVilmington,  &  Baltimore  Railroad  Co.,  4  Ilarring. 
Del.  252. 

[*4T1,  *4T:2J 


49G 


INJURIES   TO    DOMESTIC   ANIMALS. 


[part  V. 


13.  The  subject  of  negligence  in  the  plaintiff,  which  will  pre- 
vent his  recovery,  is  discussed  much  at  length  in  Beers  v.  The 
Ilousatonic  Railway ,^1  and  in  the  main  the  same  views  are  adopted 
in  regard  to  injuries  to  cattle,  which  we  have  stated  in  regard  to 
injuries  to  persons.^^  (i)  It  is  there  laid  down  by  the  court,  that 
whether  there  was  negligence  or  want  of  care  in  whatever  degree, 
by  either  party,  is  a  question  of  fact  to  be  determined  by  the  jury, 
and  that  even  where  the  circumstances  are  all  admitted,  it  will 
not  be  determined  as  a  question  of  law,  but  the  inference  of  negli- 
gence or  no  negligence  is  one  of  fact  for  the  jury.  Q") 

-1  19  Conn.  500.  And  in  Poler  v.  New  York  Central  Railroad  Co.,  10 
N.  Y.  470,  where  a  gate  adjoining  plaintiff's  land  on  defendant's  land  got  out  of 
repair  and  liable  to  be  blown  open,  and  the  plaintiff,  without  giving  notice  to 
defendant,  took  measures  to  secure  the  gate,  which  proved  ineffectual,  and  his 
cattle  escaped  through  the  fence  and  were  killed  on  the  track  of  defendant's 
road,  it  was  a  question  of  fact  whether  the  plaintiff  was  guilty  of  culpable 
negligence. 

2^  Infra,  §  193,  and  cases  cited;  Chicago  &  Mississippi  Railroad  Co.  v. 
Patchin,  10  111.  198. 


(i)  Contributory  negligence,  to  re- 
lieve from  liability,  like  the  negligence 
necessary  to  establish  liability,  must 
be  an  immediate  proximate  cause. 
Gates  V.  Burlington,  Cedar  Rapids,  & 
Minnesota  Railway  Co.,  39  Iowa,  45; 
Rock  ford.  Rock  Island,  &  St.  Louis 
Railroad  Co.  v.  Irish,  72  111.  404.  As 
to  what  will  constitute  contributory 
negligence,  see  Jones  v.  Sheboygan  & 
Fond  du  Lac  Railroad  Co.,  42  Wis. 
300;  Union  Pacific  Railroad  Co.  v. 
Schwenck,  13  Neb.  478;  Jefferson ville 
Railroad  Co.  v.  Foster,  03  Ind.  342; 
Lande  v.  Chicago  &  Northwestern 
Railway  Co.,  33  Wis.  040;  Forbes  v. 
Atlantic  &  North  Carolina  Railroad 
Co.,  76  N.  C.  454;  Wilder  v.  Maine 
Central  Railroad  Co.,  65  Me.  332; 
Pacific  Railroad  Co.  v.  Brown,  14 
Kan.  469;  Washington  v.  Baltimore 
&  Ohio  Railroad  Co.,  17  W.  Va.  190. 
Permitting  cattle  to  run  at  large  con- 
sidered as  contributory  negligence. 
Jeffersonville  Railroad  Co.  v.  Adams, 
[*472] 


43  Ind.  402;  Hammond  v.  Sioux  City 
&  Pacific  Railroad  Co.,  49  Iowa,  4.''jO; 
Evans  v.  St.  Paul  &  Sioux  City  Rail- 
road Co.,  30  Minn.  489;  Curiy  v.  Chi- 
cago &  Northwestern  Railway  Co., 
43  Wis.  605;  Fitch  v.  Buifalo,  New 
York,  &  Philadelphia  Railroad  Co.,  13 
Hun,  008.  It  depends  on  circumstances 
whether  it  is  or  not.  Cincinnati, 
Lafayette,  &  Chicago  Railroad  Co.  v. 
Ducharme,  4  Brad.  178.  Negligence 
is  not  to  be  inferred  simply  from  the 
escape  of  an  animal  from  a  field,  the 
fence  being  good.  Spinner  v.  New 
York  Central  &  Hudson  River  Rail- 
road Co.,  67  N.  Y.  153. 

(j  )  Amstein  v.  Gardner,  134  Mass. 
4;  Chicago,  Burlington,  &  Quincy 
Railroad  Co.  v.  Ilouch,  12  Brad.  88: 
Schubert  ?;.  INIinnpapolis  &  St.  Loui.s 
Railway  Co  ,  27  ]Minn.  300;  Ewing  v. 
Chicago  &  Alton  Railroad  Co.,  72  111. 
25 ;  Rockford,  Rock  Island,  &  St.  Louis 
Railroad  Co.  v.  Irish,  72  111.  404. 


§  12(3.]  INJURIES   TO   DOMESTIC    ANIMALS.  407 

14.  But  this,  wc  apprehend,  is  true  only  where  the  circinn- 
stanccs  leave  the  inrerencc  doubtful.  11'  the  pnjof  is  all  <jnc' 
way,  either  in  favor  of  or  aijjainst  negligence  having  intervened, 
the  inference  is  always  one  of  law  for  the  court.-'^ 

15.  There  arc  some  few  cases  where  actions  have  been  hronglit 
for  injuries  to  cattle  or  horses,  in  conseciucnce  of  some  alleged 
remote  negligence  in  the  company.  In  one  case,^*  the  action  was 
for  the  loss  of  a  horse,  by  falling  into  a  large  well  upon  the  com- 
pany's *  grounds.  The  plaintiff  had  frequent  car-loads  of  lumber 
coming  to  the  company's  station,  and  he  requested  them  to  re- 
move it  to  a  position  on  their  track  where  it  could  be  discharged 
into  his  own  lumber-yard,  which  they  declining  to  do,  lie  drew  it 
with  this  horse  to  the  proper  point,  and  unloaded  it.  UjKjn 
another  car  arriving  he  attempted  to  do  the  same,  without  con- 
sulting the  eomi)any,  but  his  horse  proved  restive  and  backed  oil 
the  track,  and  in  his  struggle  fell  into  the  well.  The  plaint ilT 
had  a  verdict  below,  and  a  new  trial  was  awarded,  upon  the 
ground  that  the  duty  of  the  company  to  exercise  care  and  pru- 
dence depends  upon  the  question  whether  the  plaintiff  is  in  the 
exercise  of  a  legal  right.  For  if  not,  he  must  show  that  he  exer- 
cised extraordinary  care  before  he  can  be  permitted  to  eom}ilain 
of  the  negligence  of  another. 

IG.  And  in  another  case,-^  the  jilaintiff's  horse  was  killed  by 
breaking  a  blood-vessel  in  struggling  from  fright  at  the  deiVml- 
ants'  train  of  cars  in  its  near  approach  to  the  turnpike  road, 
which  by  their  charter  they  were  rc(iuired  to  purchase,  and  in 
crossing  all  roads  to  restore  them  to  their  former  state  of  use- 
fulness. At  the  place  of  the  injury  the  defendants  excavated 
their  road-bed  upon  the  turn{)ike,  some  five  feet  l)elow  the  surface, 
leaving  a  steep  descent  upon  the  railway  and  no  fence  between 
the  track  of  the  turni)ike  and  railway.  The  ])laintirf  was  jtassing 
along  the  turnpike,  leading  his  horse  at  the  time.  It  was  lield 
that  under  their  charter  the  company  were  liable,  if  the  excava- 
tiiiii  ini[Kiirod  the  safety  of  the  turnpike  for  pul)lie  travel,  and  that 

=3  Uiulcrhill  V.  Now  York  &  Harlem  Kailroa.l  Co..  21  Barl).  180;  Lyn.ls.ny 
I'.  Connecticut  &  Passnnipsic  Rivers  Railroad  Co.,  27  Vt.  013;  Scott  r.  Wil- 
mington &  Raleigh  Railroad  Co.,  -1  Jones  X.  C.  4:>2. 

-*  Aurora  Branch  Railroad  Co.  r.  Grinie.s,  1:5  111.  .")S."). 

"'^  Moshier  v.  Utica  &  Schenectady  Railroad  Co.,  8  Barb.  127.  But  .see  Coy 
V.  Utica  &  Schenectady  Railroad  Co.,  23  Barb.  613. 

VOL.  I.  — 32  [*4TC.] 


498  INJURIES   TO    DOMESTIC    ANIMALS.  [PART    V. 

such  "  encroachments  of  defendants  upon  a  turnpike  is  a  ])ublic 
nuisance,  for  which  any  person  sustaining  a  particular  injury  may 
maintain  an  action." 

17.  And  it  has  been  laid  down,  in  general  terms,  that  a  railway 
company,  authorized  to  use  steam  locomotive  engines  upon  their 
road,  is  not  liable  for  the  damage  or  disturbance  caused  by  such 
use,  near  a  turnpike  road  existing  before  the  railway  company, 
imless  such  engines  are  used  in  an  extraordinary  and  unreason- 
able manner.-^ 

18.  And  where  the  legislature  imposed  a  penalty  upon  railways, 
of  8100  for  every  month's  delay  in  performing  the  duty  of  keep- 
ing *  and  maintaining  legal  and  sufficient  fences  on  the  exterior 
lines  of  their  road,  as  required  by  their  charters,  it  was  held  that 
the  neglect  of  the  corporation  to  perform  this  duty  rendered 
them  liable  to  reimburse  any  person  suffering  injury  thereby  in 
his  property,  in  an  action  at  common  law.  And  if  the  defect  in 
the  fences  Ijy  which  the  injury  occurs  was  known  to  the  company, 
they  arc  liable  for  the  damage  suffered,  notwithstanding  their 
engineer  was  at  the  time  in  the  exercise  of  due  care,  and  not- 
withstanding the  fence  was  originally  imperfectly  built  by  the 
plaintiff  for  the  company .^^ 

19.  In  an  action  for  injury  to  domestic  animals  by  the  passing 
engines  of  a  railway  company,  it  is  not  conclusive  of  the  liability 
of  the  company  that  the  damage  occurred  in  consequence  of  the 
passing  of  their  engine,  and  that  the  engineer  omitted  the  statutory 
requirements  of  blowing  the  whistle,  ringing  the  bell,  reversing  the 
engine,  Arc.  It  should  still  be  submitted  to  the  determination  of 
the  jury  whether  the  damage  was  caused  by  the  engineer's  neg- 
lect of  duty,  as  that  is  a  question  lying  exclusively  within  their 
province^^ 

-6  Bordentown  &  South  Aniboy  Turnpike  r.  Camden  &  Amboy  Railroad 
Co.,  2  Harrison,  311;  Coj^  r.  Utioa  &  Schenectady  Ruih-oad  Co.,  2')  Barb. 
643. 

^  Norris  v.  Androscoggin  Railroad  Co.,  39  Me.  273.  In  tiii.s  case  the 
fence  was  stone-wall,  built  by  plaintiff,  by  contract  with  the  company  some 
two  years  before,  and  accepted  by  them.  The  gap  in  the  wall  through  which 
the  animal  escaped  upon  the  track  had  existed  .several  days,  and  was  known 
to  the  company.  There  was  no  other  evidence  of  the  manner  of  constructing 
the  wall.  The  court  held  that  tlie  plaintiff  stood  in  the  same  position,  as  to 
his  claim,  as  if  any  other  one  had  built  the  wall. 

28  Memphis  &  Charlotte  Railroad  Co.  v.  Bibb,  37  Ala.  699. 
[*4T4] 


§  12G.]  INJURIES   TO    DOMESTIC    ANIMALS.  490 

20.  One  who  voluntarily  suffers  his  cow  to  jro  at  large  in  the 
public  streets  of  a  city,  with  no  one  to  take  charge  of  her,  and  thus 
to  stray  upon  a  railway  track,  at  a  time  when  cars  are  passing,  is 
guilty  of  such  carelessness  that  he  cannot  recover  for  any  injury 
to  the  animal  through  any  degree  of  negligence  short  of  that 
which  is  gross.^  (k) 

21.  The  competency  of  the  evidence  of  experts  in  regard  to 
the  management  of  locomotives  so  as  to  avoid  the  possibility  of 
doing  damage  to  animals  upon  the  track,  is  discussed  in  a  late 
case  in  Ohio.^*^  It  is  not  easy  to  define  any  very  exact  rule  in 
regard  to  the  extent  of  the  testimony  of  experts  as  to  the  practica- 
bility of  avoiding  doing  damage,  under  a  given  state  of  exposure 
*  of  persons  or  animals.  The  subject  is  a  broad  one,  and  to  its 
full  discussion  would  require  a  volume,  instead  of  a  single  para- 
graph. But  we  make  no  question,  the  management  of  a  locomo- 
tive steam-engine,  under  any  and  all  conditions  and  circumstances, 
is  a  matter  of  science  and  skill,  as  to  which  courts  and  juries  are 
not  ordinarily  competent  to  form  a  reliable  and  satisfactory  judg- 
ment, and  that  they  do  therefore  stand  in  need  of  aid  and  instruc- 
tion in  regard  to  the  matter,  whenever  it  comes  before  them  for 
determination,  and  that  consequently  the  testimony  of  experts  may 
always  be  received  under  the  ordinary  limitations  and  restrictions. 

22.  The  subject  of  the  responsibility  of  railways  for  injury  to 
cattle  running  at  large  and  coming  upon  their  track  is  very  care- 
fully considered  in  a  later  case  in  Oliio.^^     It  is  here  declared  that 

^  Bowman  v.  Troy  &  Boston  Railroad  Co.,  37  Barb.  51G. 

80  Bi'llfontaine  &  Iowa  Railroad  Co.  r.  Bailey,  11  Ohio  St.  .333. 

^1  Central  Ohio  Railroad  Co.  v.  Lawrence,  13  Ohio  St.  G6. 

(A)  It  lias  been  held,  however,  that  unrea-sonable  length  of  time.    Sohool- 

tlie  company  i.s  liable  for  the  los.s  of  a  ingc.  St.  Louis,  Kansas  City,  &Xorth- 

cow  killed  at  a  point  to  which  she  was  ern  Railway  Co.,  7-")  Mo.  518.     Denver 

presumed  to  have  been  attracted  by  &  Rio   Grande  Railway  Co.  r.  Olsen, 

salt  spilled  by  the  defendant's  ware-  4  Col.  23f);  Van  Horn  r.   Burlington, 

housemen  in  unloading  cars.     Crapton  Cedar    Rapids,  &    Northern    Railway 

r.  Hannibal  &  St.  Joseph  Railroad  Co.,  Co.,  59  Iowa,  33;  Indianapolis  &  St. 

oj  Mo.  580.     So  for  the  loss  of  hogs  Louis  Railroad  Co.  v.  Peyton.  7<>  III. 

attracted   by  drippings   of   mola.s.ses.  310;    Jeffersonville  Raih-o.nl    Co.    r. 

Page  V.  North  Carolina  Railroad  Co.,  Underhill.  18  Ind.  389:  McCandless  r. 

71  N.  C.  222.     But  contra,  where  cattle  Ciiioago  &  Northwestern  Railway  Co., 

were  attracted    by  hay  on    cars,   the  45  Wis  305.   But  see  Chicago  &  .\lton 

cars  not  having  been  left  standing  an  Railroad  Co.  r.  Engle,  84  III.  307. 

[*475] 


500  INJURIES   TO    DOMESTIC    ANIMALS.  [PART   V. 

the  owner  of  cattle  who  does  not  keep  them  within  his  own  enclo- 
sure, when  he  might  do  so  by  proper  care,  cannot  require  of  a 
railway  company  to  regulate  the  management  and  speed  of  their 
trains  with  reference  to  cattle  coming  upon  their  track.  Such 
companies,  like  all  others,  have  a  right  to  regulate  the  manage- 
ment and  conduct  of  their  business  solely  with  reference  to  the 
security  of  persons  and  property  in  their  charge,  and  the  meeting 
of  their  reasonable  appointments  in  regard  to  them,  and  may  make 
their  plans  upon  the  reasonable  and  legal  presumption  that  other 
persons  will  perform  all  their  legal  obligations  towards  them,  and 
consequently  that  the  owners  of  domestic  animals  will  keep  them 
at  home,  where  alone  they  belong,  and  not  suffer  them  to  stray 
upon  the  track  of  a  railway  company,  unless  they  are  prepared  to 
incur  the  legitimate  hazards  of  such  an  exposure.  But  when  a 
railway  company  finds  cattle  upon  its  track,  it  is  bound  to  avoid 
damage  to  them,  if  practicable,  by  the  same  degree  of  effort  that  a 
prudent  owner  of  the  cattle  would  be  expected  to  do,  properly  con- 
sidering the  hazard  both  to  the  train  and  the  cattle.  And  the 
proper  inquiry  in  such  a  case  is,  whether  the  agents  of  the  com- 
pany exercised  reasonable  and  proper  care,  in  running  their  en- 
gine, to  avoid  injury  to  the  cattle  of  the  plaintiff ;  and  the  facts 
and  circumstances  bearing  upon  this  question  are  for  the  exclusive 
consideration  of  the  jury. 

23.  And  much  the  same  view  is  taken  in  a  case  in  Kentucky ,^2 
where  it  is  said  that  the  paramount  duty  of  a  railway  *  company, 
in  the  conduct  of  a  train,  is  to  look  to  the  safety  of  persons  and 
property  therein,  and  subordinate  to  this  is  the  duty  to  avoid 
unnecessary  damage  to  animals  straying  upon  the  road.(Z)  And 
while  a  railway  company  is  not  justified  in  any  conduct  of  its 
agents  in  regard  to  cattle  upon  its  track,  which  is  needless,  wan- 
ton, or  wilful,  it  cannot  be  responsible  for  anything  short  of  tliis, 
since  the  owners  of  cattle  are  specially  bound  to  keep  them  off  the 
tracks  of  railways. 

82  Louisville  &  Frankfort  Railroad  Co.  v.  Ballard,  2  Met.  Ky.  177.  But 
railway  companies  are  not  bound  to  maintain  fences  sufficient  to  exclude  the 
possibility  of  cattle  coming  upon  their  line,  even  under  the  extreme  duty  and 
obligation  which  they  owe  toward  the  protection  of  their  passengers.  Buxton 
V.  Northeastern  Railway  Co.,  Law  Rep.  3  Q.  B.  549. 


(J)  Supra,  note  (h). 

[*476] 


§  120.]  INJURIES   TO    DOMESTIC    ANIMALS.  501 

24.  And  in  a  caso  in  Marvlumlr'  it  was  held  that  the  -wcll- 
scttkd  principle  of  the  common  law,  (hat  a  plaintilT  is  not  entitled 
to  recover  for  injnries  to  which  his  own  fault  or  negligence  has 
directly  contributed,  is  not  ahrouatcd  l»y  the  several  acts  of  assem- 
bly, regulating  the  liabilities  of  railways  in  this  state  for  stock 
killed  or  injured  by  their  trains.  These  acts  leave  the  question 
of  the  effect  of  the  plaintiff's  conduct  upon  his  right  to  recover  for 
the  acts  of  others  where  it  was  at  the  common  law.  But  the  burden 
of  proof  is  changed  by  the  statute,  and  where  stock  is  killed  the 
law  now  imputes  negligence  to  the  company,  unless  it  can  show 
that  the  damage  results  from  unavoidable  accident.^  It  was  not 
intended  hereby  to  interfere  with  the  time-table  or  the  rate  of 
speed  on  railways.  The  act  leaves  all  this  to  the  discretion  of 
the  companies,  but  imposes  upon  them  the  highest  degi'ce  of  care 
and  caution  ;  and  in  the  absence  of  fault  on  the  part  of  the  jjlain- 
tiff  it  must  appear  that  the  collision  took  ])lace  without  any  fault 
or  negligence  on  the  part  of  the  company  or  its  agents,  in  order 
to  exonerate  them.  In  other  words,  if  the  plaintiff  is  not  in  fault 
the  company  will  be  responsible,  unless  the  damage  is  the  result 
of  unavoidable  accident. 

25.  In  Indiana  it  is  held,  that  in  an  action  against  the  company 
for  killing  stock  it  must  appear,  both  in  the  complaint  and  proof, 
that  the  damage  resulted  from  the  carelessness  of  the  company  or 
the  omission  to  fence  their  road.^^  (w) 

2C.  In  Missouri  ^s  it  is  determined  by  statute  and  the  construc- 
tion *  of  the  courts,  that  if  the  accident  occur  u]ion  a  jiortion  of 
the  line  not  enclosed  by  a  lawful  fence,  and  not  at  a  road  or  street 
crossing,  whereby  domestic  animals  ai'e  i<illed  or  injured,  the  com- 
pany are  resj)onsible,  at  all  events,  and  without  reference  to  any 

^3  Kecch  c.  Bultiinore  &  Washington  Railroad  Co.,  17  Md.  IVJ. 

S'*  liidianajiolis,  Pittsburg  &  Cleveland  Railroad  Co.  r.  Sparr.  13  Iiid.  110; 
Same  v.  Williams,  15  Tnd.  480. 

^^  Mi'yer  v.  Xorth  Missouri  Railroad  Co.,  3.')  Mo.  :l.")2;  Powell  v  IIannil>a] 
&  St.  Joseph  Railroad  Co.,  'i'>  Mo.  i.oT;  Burton  v.  North  Mi.ssuuri  Railroad 
Co.,  30  Mo.  37l>. 

(»i)  The  matter  is  now  regulated  hy  Same  v.  Downey,  Gl  Ind.  287;  i.ouis- 
statute,  both  as  to  grounds  of  liability  ville,  New  Albany,  &  Ciiicago  R.nil- 
and  as  to  practice  in  proceedings  to  way  Co.  r.  Smith,  58  Ind.  575;  Halti- 
euforco  liability.  See  Jeffersonville  n>L>re,  Pittsburg.  &  Chicago  Raihv.iy 
Railroad    Co.  v.  Lyon,  55  Ind.    177;     Co.  v.  Thomas,  GO  Ind.  1G7. 

[*47TJ 


502  INJURIES   TO    DOMESTIC    ANIMALS.  [PART   V. 

question  of  negligence,  either  on  their  part  or  that  of  the  owner 
of  the  animals.  But  at  highway  or  street  crossings  the  company 
are  not  responsible  for  any  damage  to  such  animals,  unless  it 
occur  through  some  neglect  or  fault  on  their  part,  (n) 

27.  In  California  ^^  it  seems  to  be  considered  that  the  custom  of 
the  country  to  suffer  domestic  animals  to  go  at  large  on  the  com- 
mons will  override  the  rule  of  the  common  law,  obliging  the 
owner  to  restrain  his  cattle  within  his  enclosures,  and  that  conse- 
quently no  negligence  is  imputable  to  the  owner  on  account  of  so 
suffering  his  animals  to  go  at  large.  But  railway  companies  are 
not  held  responsible  for  damage  inflicted  upon  such  animals  so 
running  at  large  unless  it  might  have  been  avoided  by  ordinary 
care  and  prudence  on  the  part  of  the  company  at  the  time.^^ 

28.  There  seems  to  have  been  some  very  nice  questions  raised 
in  the  courts  of  Illinois,  for  if  it  were  not  so  some  of  the  decisions 
would  seem  to  partake  largely  of  the  character  of  incomprehensi- 
bility. For  we  find  it  gravely  declared,  in  one  case,^^  that  the 
law  does  not  require  any  different  words  to  be  used  in  proving  a 

36  Waters  v.  Moss,  12  Cal.  535.  And  in  Alger  v.  Mississippi  &  Missouri  Rail- 
road Co.,  10  Iowa,  268,  it  was  held  that  permitting  cattle  to  run  at  large  does 
not  impute  negligence  to  the  owner,  nor  is  he  liable  as  a  trespasser  if  they  are 
found  on  an  unfeuced  railway.  A  railway  company  is  bound  to  exercise  ordi- 
nary care  not  to  injure  animals  coming  upon  its  track  through  defect  of  fence. 
After  the  road  is  fenced  the  company  is  only  liable  in  such  cases  for  gross 
neglect.  And  in  McCall  v.  Chamberlain,  13  Wis.  637,  it  is  held  that  the 
duty  of  companies  to  fence  their  roads  is  intended  for  the  pi'otection  of  the 
public  generally ;  and  that  until  such  fences  are  built  the  company  is  liable 
for  all  injuries  to  animals  on  their  track,  without  reference  to  any  question 
of  their  being  rightfully  iu  the  adjoining  land  from  whence  they  escaped 
upon  the  track.  And  the  lessee  of  the  company  assumes  all  the  company's 
responsibility. 

3''  Richmond  v.  Sacramento  Valley  Railroad  Co.,  18  Cal.  351.  There  is  no 
statute  here  requiring  railways  to  be  fenced  by  the  companies.  But  when  that 
is  required,  and  the  plaintiff  alleges  the  duty  was  not  performed,  he  must  prove 
it  as  part  of  his  case.  Indianapolis,  Pittsburg  &  Cleveland  Railroad  Co.  v. 
Wharton,  13  Ind.  509. 

^^  Ohio  &  Mississippi  Railroad  Co.  v.  Irvin,  27  111.  178. 

(;/)  There  the  company  is  not  liable  employe  is  using  for  his  own  purposes, 

for  an  injury  resulting  from  anything  without  authority  and  outside  the  line 

other  than  an  actual  collision.    Seibert  of  his  employment.     Cousins  v.  Han- 

V.  Missouri,  Kansas,  &  Texas  Railway  nibal   &   St.  Joseph  Railroad  Co.,  66 

Co.,  72  Mo.  565.     Nor  for  an  injury  Mo.  572. 
inflicted   by   a  locomotive   which  an 

[*477] 


§  12G.]  INJURIES   TO    DOMESTIC    ANIMALS.  503 

case  ajrainst  a  railway  from  tliosc  used  in  otlier  cases.  It  i.s  only 
necessary  the  mind  should  be  convinced  of  the  existence  of  Iho 
necessary  *  facts.  And  in  the  same  case;  The  presumption  is 
that  the  houses  compose  a  villaiie,  and  if  an  animal  is  killed 
beyond  the  houses  the  presumption  is  that  it  is  killed  beyond  the 
village,  and  if  the  town  extends  beyond  the  houses  the  defendant 
shoukl  know  the  fact ;  and  also  :  Every  one  is  sup[)0sed  to  have 
some  idea  of  the  value  of  such  property  as  is  in  general  use,  and 
it  is  not  necessary  to  have  a  drover  or  butcher  to  })rovc  the  value 
of  a  cow.  And  in  another  case  in  this  state  it  seems  to  have 
been  claimed  that  the  declaration  against  a  railway  for  injuries 
to  domestic  'animals  must  negative  the  possibility  of  any  excuse 
on  the  part  of  the  comj)any.  Uut  the  C(jurt  hold  that  matters  of 
excuse  on  the  part  of  the  company,  as,  that  the  animals  were 
killed  at  a  farm-crossing,  and  that  the  road  was  pro})erly  fenced 
by  them,  must  be  shown  by  way  of  dcfence.'^^  But  it  was  held 
in  another  case  in  that  state,  that  the  i)laintiff,  in  making  out  his 
own  cause  of  action,  must  negative  by  proof  the  existence  of  a 
j)ublic  crossing  where  the  killing  occurred,  and  should  show  that 
the  defendants  were  bound  to  fence  at  that  point.'*'  And  it  was 
held  in  a  later  case,  that  it  was  negligence  in  a  railway  company 
to  allow  vegetation  to  grow  upon  its  right  of  way,  so  that  cattle 
may  be  concealed  from  vicw.^'(w) 

29.  If  one  allows  stock  to  run  in  the  highway  near  a  railway 
crossing  it  is  such  negligence  that  he  cannot  recover  for  any  in- 
jury thereto.'*^  And  if  one  allows  his  cattle  so  to  run  in  the 
highway,  and  thus  come  ut)on  the  track  of  the  railway,  and  the 
company  use  all  statutory  and  other  reasonable  i)recautious  to 
avoid  damage  to  them,  the  owner  cannot  recover  for  any  such 

89  Groat  Western  Railroad  Co.  v.  Helm,  27  111.  198. 

^0  Ohio  &  Mississippi  Railroad  Co.  r.  Taylor,  27  111.  207. 

*^  liass  I".  Chicago,  Burlington,  &  (iuincy  Railroad  Co.,  2S  111.  0. 

*-  Chicago,  Burlington,  &  Quincy  Railroad  Co.  v.  Cauffmau,  28  111.  513. 

(o)  So  to  allow  weeds,  &c.,  togrow  Indianapolis,  Bloomington,  &  Western 

in  the  right  of  way  to  such  a  height  Railway  Co.,  107  111.  577.     The  owner 

as  to  obstruct  the  view  of  a  crossing,  of  a  horse  pormittcd  to  run  at  large 

Indianapolis  &  St.  Louis  Railroad  Co.  cannot  recover,  because  the  coinjiany 

f.  Smith,  78  111.  112.     Damages  can  had  failed  to  fence.      Peoria,  rikin. 

be  recovered  under  the  statute  only  in  &  Jacksonville  Railroad  Co.  v.  Champ, 

case  of  actual   collision.      Schertz  v.  75  111.  577. 


604  INJURIES  TO    DOMESTIC    ANIMALS.  [PART   V. 

damage,  which  is  thus  caused  either  wholly  or  in  part  by  his  own 
neglect,  and  he  would  also  be  liable  for  all  injury  to  the  com- 
pany or  to  persons  or  property  in  their  charge.*^  (p)  And  the 
omission  of  the  company  to  sound  the  whistle  or  to  ring  the  bell 
in  such  cases,  will  not  render  them  responsible  for  damage  to 
cattle,  unless  it  appear  that  such  precautions  would  have  pre- 
vented the  injury .^^ 

30.  In  actions  for  injury  to  cattle,  if  negligence  is  clearly 
proved  on  the  part  of  the  plaintiff,  the  company  are  not  respon- 
sible unless  *  guilty  of  gross  negligence,  which  implies  wilful 
injury.'**  In  such  actions  founded  upon  the  statute,  the  declara- 
tion should  negative  all  the  exceptions  in  the  statute ;  but  the 
plaintiff  is  not  called  upon  to  negative  in  proof  the  existence 
of  any  contract  between  himself  and  the  company  to  maintain 
the  fences  along  the  line  of  the  road  against  his  land.*^ 

31.  As  the  statute  does  not  require  railway  companies  to  fence 
their  road  within  the  limits  of  cities  and  villages,  they  are  not 
responsible  for  damage  to  domestic  animals  caused  by  their  trains 
within  such  corporate  limits  ;  and  if  the  animal  come  upon  their 
track  within  these  limits,  and  is  driven  by  the  train  beyond  these 
limits  and  there  killed,  without  any  fault  on  the  part  of  the  com- 
pany, it  is  immaterial  whether  the  road  was  properly  fenced  at 
the  point  where  the  animal  was  killed,  as  it  came  upon  the  track 
at  a  point  where  the  company  were  not  obliged  to  fence."'^  The 
mere  killing  of  an  animal  by  a  railway  company  does  not  render 
them  liable,  unless  they  have  been  guilty  of  negligence  or  the 
case  comes  within  the  statute.'*^ 

32.  In  cases  where  the  company  are  required  by  statute  to  ring 
the  bell  or  sound  the  whistle,  and  that  is  omitted,  if  injury 
occur  in  consequence,  they  will  be  responsible,  unless  the  party 
injured  was   himself   guilty  of  negligence  contributing  to  such 

«  Illinois  Central  Railroad  Co.  r.  Phelps,  29  111.  447. 

**  Illinois  Central  Railroa<l  Co.  r.  Goodwin,  30  111.  117. 

*'=  Great  Western  Railroad  Co.  v.  Bacon,  30  III.  347. 

*^  Same  v.  Morthland,  30  111.  451;  Galena  &  Chicago  Railroad  Co.  v.  Griffin, 
31  111.  303.  As  to  cases  under  positive  statute,  see  Illinois  Central  Railioad 
Co.  V.  Swearingen,  33  III.  289. 

(p)  Toledo,  Wabash,    &   Western     Chicago   &    Alton    Railroad    Co.    v. 
Railway  Co.    v.   Barlow,  71  111.  640;     McMorrow,  67  111.  218. 
[*479] 


§  1^^-] 


INJUIUES   TO    DOMKSTIC    ANIMALS. 


i05 


result.*"  It  is  here  said  that  railway  companies  arc  responsible 
for  injuries  to  persons  or  i)roperty,  when  wilfully  done,  or  result- 
ing from  gross  neglect  of  duty.  The  company  to  exonerate 
themselves  must  use  all  reasonable  or  statutory  precautions  to 
j)revent  the  injury,  and  an  omission  to  do  so  will  render  them 
responsible,  if  the  omission  ])roducc  or  contribute  to  the  injury, 
and  the  plaint  iff  was  not  himself  in  fault  in  any  particular  also 
contributing  to  the  injury .^^ 

33.  J]ut  in  actions  of  tort  against  railway  companies  to  recover 
damages  for  killing  cattle  upon  their  track,  it  is  not  competent 
tij  prove  the  comi)any  guilty  of  negligence  in  ruiniing  their  other 
trains,  beside  the  one  by  which  the  cattle  were  killed.*^ 

34.  The  rule  of  damages  for  injuries  done  to  cattle  is  the  value 
of  the  animal  or  the  actual  pecuniary  loss,  unless  there  is  jjroof 
of  wantonness  or  wilful  injury.*^  (^) 

"  Great  Western  Railroad  Co.  v.  Geddis,  33  111.  304. 

*^  Mississippi  Central  Railroad  Co.  r.  Miller,  40  Miss.  45. 

«  Toledo,  Peoria,  &  Warsaw  Railroad  Co.  v.  Arnold,  43  111.  418. 

(7)  Atlanta  &  West  Point  Railroad    Island,  &  Pacific  Railroad  Co.,  55  Mo. 


Co.  V.  Hudson,  G"2  Ga.  079;  Atchison, 
Topeka,  &  Santa  Fe  Railroad  Co.  v. 
Ireland,  19  Kan.  405;  Finch  i\  Cen- 
tral Raihoad  Co  ,  42  Iowa,  304;  Cen- 
tral Hranch  Union  Pacific  Railroad  Co. 
I'.  Nichols,  24  Kan.  242,  and  cases 
passim.  Several  of  the  states,  like 
Arkansas,  Iowa,  Illinois,  Missouri, 
have  passed  acts  making  the  company 
liable  in  certain  cases  to  double  dama- 
ges. The  statutes  of  the  states  named 
have  been  held  constitutional.  Mem- 
phis &  Little  Rock  Railroad  Co.  v. 
Ilorsfall,  30  Ark.  051 ;  !Mackie  v.  Cen- 
tral Railroad  Co.,  54  Iowa,  510;  Kaes 
i\  Missouri  Pacific  Railway  Co.,  0  Mo. 
Ap.  397;  Cairo  &  St.  Louis  Railroad 
Co.  V.  Warrington,  92  111.  157.  The 
statutes  of  Alabama  and  Xebraska 
have  been  declared  unconstitutional. 
Ziegler  v.  South  &  North  Alabama 
Railroad  Co.,  58  Ala.  591;  Atchi.son 
&  Nebraska  Railroad  Co.  v.  Baty,  G 
Neb.  37.  As  to  construction  of  such 
statutes,  see  Seaton  v.  Chicago,  Rock 


410;  Miller  r.  Chicago  &  Northwestern 
Railway  Co.,  59  Iowa,  707;  Little 
Rock  &  Fort  Smith  Railroad  Co.  c. 
Payne,  33  Ark.  810.  Under  the  :\Iis- 
souri  statute  the  verdict  should  be  for 
single  damages,  which  the  court  may 
double.  Wood  v.  St.  Louis,  Kansas 
City,  &  Northern  Railroad  Co.,  58 
^lo.  109.  Exemplary  damages  can  be 
had  only  in  case  the  company  was 
reckless.  Chicago,  St.  Louis,  ic  New 
Orleans  Railroad  Co.  i'.  Janrett,  11 
Am.  &  Eng.  Railw.  Cas.  455.  In- 
terest may  be  allowed  from  commence- 
ment of  action.  Dean  v.  Chicago 
&  Northwestern  Railway  Co.,  43  Wis. 
305.  Not  from  date  of  injury. 
Toledo,  Peoria,  &  AWtrsaw  Railway 
Co.  r.  Johnston,  74  III.  83;  Meyer  c. 
AtlaJitic  &  Pacific  Railroad  Co.,  04 
^lo.  542.  See  Luckin  r.  Delaware  & 
Hudson  Canal  Co.,  22  Ilun,  309.  In- 
terest is  recoverable  only  ;is  damages. 
Western  &  Atlantic  Railroad  Co.  r. 
McCauley,  08  Ga.  818. 

[*47'J] 


506 


FENCES. 


[part  V. 


*CHAPTER    XIX. 

FENCES. 


SECTION    I. 


Ohligation  to  Maintain  ;  Rests  on  whom. 


1.  English  statute  makes  a  separate  pro- 

vision for  fencing. 

2.  Enforced  against  tlie  companies  by 

mandamus. 

3.  Where  no  such  provision  exists,  the 

expense  of  fencing  is  part  of  the 
land  damages. 
n.  (a)  Regulated  by  statutes  in  some 
of  the  states.     Various  provisions. 

4.  Where  the  company  resists  the  assess- 

ment, tlie  landowneris  in  the  mean 
time  not  obliged  to  fence. 

5.  In  some  cases  held  that  the  duty  of 

fencing  rests  equally  on   the  com- 
pany and  the  land-owner. 

6.  Assessment  of  land-damages,  on  con- 

dition that  company  build  fences, 
raises  an  implied  duty  on  part  of 
company. 

7.  In  some  states,  owners  of  cattle  not 

required  to  confine  them  on  their 
own  land. 

8.  Lessee  of  railway  bound  to  keep  up 

fences  and  farm  accommodations. 

9.  Company   bound   to   fence   land  ac- 

quired by  grant  as  well  as  by  pro- 
ceedings in  invitum. 

10.  Farm-crossings     required    wherever 

necessary. 

11.  Land-owner    declining  farm   accom- 

modations, has  no  redress ;  courts 
of  equity  will  not  decree  specific 
performance. 

12.  Fences    and    farm    accommodations 

not  required  for  safety  of  servants 
and  employes. 

13.  Requisite   proof  where  company  lia- 

ble for  all  cattle  killed. 

14.  Party  bound  to  fence  assumes  pri- 

mary responsibility. 

[*480] 


15.  Company   not    liable  for   injury   at 

road-crossings. 

16.  Company  not  liable  for  injury  to  cat- 

tle by  defect  offence  about  yard. 

17.  Animals  escaping  through  defect  of 

fence. 

18.  Injury  must  appear  to  have  occurred 

through  default  of  company. 

19.  Cattle-guards  required  in  villages,  but 

not  so  as  to  render  streets  unsafe. 

20.  Company    responsible    for    injuries 

through  defect  of  fences  and  cattle- 
guards. 

21.  Common-law  rule  as  to  liability  main- 

tained in  New  Hampshire. 

22.  Company  responsible   as   long  as   it 

controls  road. 

23.  Maintaining  fences,  matter  of  police. 

Duty  under  the  English  statute 
and  at  common  law.  Fencing 
against  children. 

24.  Rule  as  to  land-owner  agreeing  to 

maintain  fence,  &c. 

25.  Company  not  responsible  for  defect 

offence  wliere  fence  is  not  needed. 

26.  Company  not  responsible  in  Indiana 

unless  in  fault. 

27.  Company    not    liable    where    fence 

thrown  down  by  others. 

28.  Owner  in  fault  cannot  recover  unless 

company  failed  to  exercise  ordi- 
nary care. 

29.  Rule   of  damages   for  not    building 

fence,  &c. 
.SO.  Landowner  must  keep  up  bars. 

31.  Illustrations  of  the  general  rule. 

32.  Actions  under  statute  must  be  brought 

within  it. 

33.  Owner  in   Pennsylvania  must  keep 

his  cattle  at  home. 

34.  Statutory  fence  required. 


§  127.]  OBLIGATION    TO    MAINTAIN.  .007 

*§127.  1.  By  the  Railway  Clauses  Consolidation  Act*  it  i.s 
made  the  duty  of  the  railways  in  England,  before  thoy  use  land  fur 
any  of  tiieir  i)ur])0.scs,  to  fence  it,  and  make  eonveni<>nt  pas.ses  fur 
the  owner,  which,  if  the  parties  do  nut  agree,  are  to  \n:  determined 
by  twu  magistrates.  Under  this  slatute  it  has  been  held,  that  the 
railway  is  not  excused  from  mailing  the  necessai'y  aceonnnodations 
to  keep  up  cummunicatiun,  to  the  owner,  between  dilTerent  parts 
of  lands  intersect(;d  by  the  line  of  a  railway,  because  these  are  not 
dclined  in  the  arbitrators'  award  of  land  damages.  They  arc  totally 
distinct  things  from  the  land  damages.-  And  where  the  jury,  as- 
sessing land  damages,  also  made  a  separate  verdict  for  the  exjjense 
of  crossing  the  railway  by  a  private  way,  it  was  considered  that  they 
exceeded  their  jurisdiction,  and  their  proceedings  were  quashed.-'^ 

2.  It  is  considered,  in  the  English  courts,  that,  the  expense  of 
building  fences  and  crossings  being  imposed  upon  the  railways  by 
statute  pei'petnally,  and  the  mode  of  enforcing  its  performance 
pointed  out  in  the  statute,  it  has  no  connection  with  the  land 
damages,  but  is  to  be  enforced  under  the  statute,  and  land  dam- 
ages are  to  be  appraised  upon  the  basis  of  that  duty  resting  u])un 
the  railway. 

3.  But  where  the  statute  makes  no  such  provision,  (a)  the  ex- 

^  Statute  8  &  9  Vict.  c.  20,  §  40.  But  in  Kyle  v.  Auburn  &  Rochester  Rail- 
road Co.,  2  Barb.  Ch.  489,  the  court  declined  to  interfere  by  injunction,  to 
compel  the  building  of  a  farm-cro.ssing,  although  tlie  company  as.sunied  before 
the  jury  for  assessing  land  damages,  that  they  should  make  such  a  crossing,  the 
plans  showing  none.  It  is  said,  that  under  such  circumstances,  it  is  tlie  duty 
of  the  land-owner  to  make  necessary  crossings,  and  that  he  is  a  trespasser  for 
crossing  the  railway  without  them  ;  and  this  shotdd  be  so  considered,  in  assess- 
ing damages  for  taking  the  land,  and  compensation  made  for  such  exjwnse. 

2  Skerrat  r.  North  Staffordshire  Railway  Co.,  .')  Railw.  Cas.  lOG,  per  Lord 
CoTTKNUA.M,  Chancellor.     See  infra,  §  131,  note  -i. 

8  In  re  South  Wales  Railway  Co.  r.  Richards,  G  Railw.  Cas.  197.  So  too 
where  the  land-owner  stipulated  with  the  promoters  for  certain  watering-places 
and  other  conveniences,  and  to  accept  a  certain  sum  for  special  dannige.  and 
to  withdraw  thereupon  opposition  to  the  bill,  it  was  held  that  the  duty  to 
make  suitable  watering-places  might  be  enforced  by  mandamus.  Regina  v. 
York  &  North  Midland  Railway  Co.,  3  Railw.  Cas.  701;  Infra.  §§  128.  151, 
152.  The  provision  for  fences,  in  the  Englisli  statute,  being  a  si-parate,  inde- 
pendent, general  provision,  is  enforced,  altugetlier  aside  from  the  proceedings 
to  assess  land  damages. 

(a)  In  some  of  the  states  there  are  their  roads.  Such  statutes  .ire  a 
statutes  requiring  companies  to  fence     police   regulation    for    the   safety   of 

LM81J 


508 


FENCES. 


[part  V. 


pense  of  fencing  and  making  crossings  is  an  important  consideration 
in  estimating  damages  for  the  land  taken,  and  this  expense  should 


travellers,  &c.,  and  as  such  obligatory 
on  corporations  chartered  after  as  well 
as  before  their  passage.  Wildei-  v. 
]Maine  Central  Railroad  Co.,  05  Me. 
332.  Under  some  of  these  statutes 
the  adjoining  owner  may  build  the 
fence  in  case  the  company  is  delin- 
quent, and  recover  the  expense  in  an 
action  against  the  company.  Logans- 
port  Railway  Co.  v.  Wray,  52  Ind. 
578;  Jones  v.  Seligman,  81  N.  Y. 
190;  Fletcher  v.  St.  Louis,  Kansas 
City,  &  Northern  Railway  Co.,  73 
Mo.  142;  Warner  I'.  Baltimore  &Ohio 
Railroad  Co. ,  31  Ohio  St.  205.  Under 
the  New  York  statute  the  owner  is 
not  confined  to  that  remedy.  He  may 
enforce  the  performance  of  the  duty 
by  the  company.  Jones  v.  Seligman, 
81  N.  Y.  190.  See  further  Kane  v. 
New  Yoik  &  New  England  Railroad 
Co.,  49  Conn.  139;  Ward  v.  Paducah 
&  Memphis  Railroad  Co.,  4  Fed.  Rep. 
862;  Toledo,  Peoria,  &  Warsaw  Rail- 
way Co.  V.  Sieberus,  03  111.  217 ;  Gowan 
V.  St.  Paul,  Stillwater,  &  Taylor's  Falls 
Railroad  Co.,  25  Minn.  328;  Boston 
&  Albany  Railroad  Co.  v.  Briggs,  132 
Mass.  24.  Where  the  statute  requires 
the  company  to  fence,  the  duty  is  a 
public  one,  and  the  owner  of  cattle  has 
a  right  to  assume  that  the  company 
■will  perform  it.  St.  John  &  Elaine 
Railway  Co.  v.  Montgomery,  5  Pugs. 
&  Bur.  441. 

For  construction  of  that  provision 
of  the  Illinois  statute  which  requires 
the  company  to  build  fences  within 
six  inonths,  see  Rockford,  Rock  Island, 
&  St.  Louis  Railroad  Co.  v.  Heplin, 
65  111.  366;  Same  r.  Connell,  67  111. 
216;  Toledo,  Peoria,  &  Warsaw  Rail- 
way Co.  V.  Crane,  68  111.  355;  Same 
V.  Logan,  71  111.  191;  Same  i'.  Lavery, 

[*481] 


71  111.  522.  Whether  the  company 
shall  fence  does  not  depend  on  its 
ownership  of  the  fee.  It  is  just  as 
much  bound  to  fence  if  it  has  only 
an  easement.  Toledo,  Peoria,  &  AVar- 
saw  Railway  Co.  v.  Pence,  68  111.  524. 
The  company  is  entitled  to  a  reason- 
able time  to  repaii'  any  casual  breach. 
Indianapolis  &  St.  Louis  Railroad  Co. 
V.  Hall,  88  111.  368;  Davis  t?.  Chicago, 
Rock  Island,  &  Pacific  Railroad  Co., 

40  low^a,  292 ;  Varco  v.  Chicago,  Slil- 
waukee,  &  St.  Paul  Railway  Co.,  30 
Minn.  18.  So  of  a  breach  made  by 
persons  not  in  its  employ  nor  under 
its  control.  Chicago  &  Alton  Rail- 
road Co.  V.  Saunders,  85  111.  288.  And 
the  company  is  held  to  reasonable 
diligence.  McCormick  v.  Chicago, 
Rock  Island,  &  Pacific  Railroad  Co., 

41  Iowa,  193 ;  Case  v.  St.  Louis  &  San 
Francisco  Railroad  Co.,  75  Mo.  668. 
Where  there  was  a  delay  of  two  days 
after  the  breach  might  reasonably  have 
been  i-epaired,  it  was  held  that  there 
was  a  want  of  reasonable  diligence. 
Goddard  v.  Chicago  &  Northwestern 
Railway  Co.,  54  Wis.  548.  A  defect 
patent  and  known  to  have  existed  two 
weeks  or  more  held  presumptive  proof 
of  negligence.  Varco  v.  Chicago, 
Milwaukee,  &  St.  Paul  Railway  Co., 
30  Minn.  18.  But  held  no  unreason- 
able delay  where  the  fence  was  burned 
at  six  or  seven  o'clock  in  the  evening, 
and  the  foreman  had  notice  at  about 
eight,  and  was  on  the  ground  before  six 
in  the  morning,  and  proceeded  without 
unreasonable  delay  to  repair  with  the 
company's  nearest  material,  which  was 
about  half  a  mile  distant.  Stephen- 
son V.  Grand  Trunk  Railway  Co.,  34 
Mich.  323.  Nor  is  it  negligence  as 
matter  of  law,  that  the  company  does 


§  127.] 


OBLIGATION    TO    MAINTAIN. 


r>Qo 


*  undoubtedly  be  borne  by  tlie  company,  in  addition  to  paying  tlio 
value  of  tlie  land,  for  otherwise  the  land  is  taken  without  an  ocjuix  - 
alcnt.  But  the  courts  in  most  of  the  American  states  have  re- 
sisted this  view  wherever  it  was  practicable,  more  commonly  upon 
some  tcclinical  r^round  of  presumption  or  inference,  when,  in  fact, 
the  omission  of  such  an  exjjrcss  provision  in  the  charter  or  the 
u^eneral  laws  of  the  states  was  wholly  the  result  of  oversight  in  the 
legislatures.  But  it  is  refreshing  to  find  some  courts  so  far  re- 
lieved from  the  trammels  of  mere  technicality  as  not  to  feel  com- 
pelled to  sacrifice  an  ol)vious  principle  of  justice  to  the  shadow  of  a 
mere  form.  In  a  case  in  California  we  find  an  announcement  upon 
this  (luestion  which  evidently  comes  from  the  right  quarter,  a  sense 
of  simple  justice.     It  declares,  if  fences  are  rendered  necessary 


not  repair  at  once,  the  weather  being 
good,  and  want  of  repair  being  known 
to  the  employe  before  sunset.  Crosby 
V.  Detroit,  Grand  Haven,  &  Milwaukee 
Railroad  Co.,  23  Am.  &  Eiig.  Raihv. 
Cas.  101.  Though  it  is  the  duty  of 
an  injured  party  to  use  reasonable 
diligence  to  protect  his  property,  he 
may  not  enter  to  repair  fences  or 
cattle-guards.  Downing  v.  Chicago, 
Rock  Island,  &  Pacific  Railioad  Co., 
43  Iowa,  96.  As  to  notice  to  the  com- 
pany, see  Jones  r.  Chicago  &  North- 
western Railway  Co.,  49  Wis.  352; 
Ohio  and  Mississippi  Railroad  Co.  r. 
Clutter,  82  111.  12:5;  Indianapolis  & 
St.  Louis  Railroad  Co.  v.  Hall,  83  111. 
308.  The  company  is  also  bound  to 
use  reasonable  diligence  to  keep  gates 
and  bars  in  proper  condition  and 
properly  closed.  Perry  v.  Dubuque, 
Southwestern  Railway  Co.,  30  Iowa, 
102;  Hammond  v.  Chicago  &  North- 
western Railroad  Co.,  43  Iowa,  1G8; 
Mackie  r.  Central  Railroad  Co.,  54 
Iowa,  540;  Toledo,  Wabash,  &  West- 
ern Railway  Co.  v.  Nelson,  77  III. 
160;  Estes  v.  Atlantic  &  St.  Law- 
rence Railroad  Co.,  63  Me.  308.  It  is 
also  the  duty  of  the  company  to  main- 
tain cattle-guards  as  a  part  of  a  suit- 


able fence.  Pittsburg,  Cincinnati,  & 
St.  Louis  Railway  Co.  u.  Eby,  55  Ind- 
507.  See  Cook  v.  Milwaukee  &  St. 
Paul  Railway  Co.,  30  Wis.  45;  Welty 
V.  Indianapolis  &  Vincennes  Railroad 
Co.,  24  Am.  &  Eng.  Railw.  Cas.  371. 
Whether  a  cattle-guard  is  sufficient  is 
a  question  for  the  jury.  Swartout  v. 
New  York  Central  &  Hudson  River 
Railroad  Co.,  7  Hun,  571;  Cleveland 
Railroad  Co.  v.  Newbrander,  11  Am. 
&  Eng.  Railw,  Cas.  480.  In  general, 
contributory  negligence  is  a  defence 
to  an  action  for  injury  wliere  there  is 
no  fence.  Cuny  v.  Chicago  &  North- 
western Railway  Co.,  43  Wis.  605; 
Whittier  r.  Chicago,  IMllwaukee,  & 
St.  Paul  Railway  Co..  21  Minn.  :'.94. 
But  see  Loui.sville,  New  Albany,  & 
Chicago  Railway  Co.  v.  Cahill,  63  Ind. 
346.  As  to  what  is  contributory  neg- 
ligence, see  Richardson  v.  Chicago  & 
Northwestern  Railway  Co.,  56  Wis. 
347 ;  Sandusky  &  Clcvoland  Railroad 
Co.  V.  Sloan,  27  Ohio  St.  341;  Rail- 
road Co.  V.  !Miami  County  Infirmary, 
32  Ohio  St.  566;  Johnson  r.  Chicago, 
Milwaukee,  &  St.  Paul  Railway  Co., 
20  Minn.  425;  Cairo  &  St.  I>ouis  Rail- 
road Co.  V.  Woolsey,  85  111.  370. 

[*482] 


510  FENCES.  [part   V. 

for  the  protection  of  the  crops  of  the  land-owner  by  the  construc- 
tion of  the  railway  through  the  land,  the  cost  of  such  fences  must 
be  included  in  the  compensation  to  be  paid  by  the  company,^ 
and  this  by  necessary  consequence  must  include  a  sum  sufilicient 
to  indemnify  the  owner  against  the  constantly  accruing  expenses 
of  maintaining  such  fences.  And  the  tendency  of  the  more  recent 
decisions  is  sensibly  in  this  direction ;  and  we  might  add,  without 
offence,  that  in  our  judgment  it  is  the  only  sensildc  direction  the 
decisions  could  take,  and  we  have  always  expected  them  to  take 
such  a  direction  in  the  end,  however  late  it  may  come.^  (^) 

4.  And  where  in  such  circumstances  the  commissioners  assessed 
the  land  damages,  and  a  separate  sum  for  building  fences,  and 
judgment  was  rendered  in  favor  of  the  land-owner  for  both  sums, 
but  the  payment  resisted  by  a  proceeding  in  Chancery,  on  the  part 
of  the  railway,  and  while  this  was  still  undecided  the  company 
commenced  running  their  engines,  and  the  cattle  of  the  occupier 
of  the  land  strayed  upon  the  track  and  were  killed  by  the  engines 
of  the  company,  it  was  held,^  that  the  obligation  to  maintain  the 
*  fence  rests  primarily  upon  the  company,  and  until  they  have 
either  built  the  fences  or  paid  the  land-owner  for  doing  it,  a  suffi- 
cient time  before  to  enable  him  to  do  it,  the  mere  fact  that  cattle 
get  upon  the  *  road  from  tlie  land  adjoining  is  no  ground  for  im- 
puting negligence  to  the  owner  of  the  cattle.^  (c) 

*  Sacramento  Valley  Railroad  Co.  v.  Moffatt,  6  Cal.  74. 

5  Evansville  Railroad  Co.  v.  Fitzpatrick,  10  Ind.  120;  Same  v.  Cochran,  10 
Ind.  5G0;  Same  v.  Stringer,  10  Ind.  551.  This  is  now  remedied  by  statute  in 
many  states. 

<>  Quiinby  v.  Vermont  Central  Railroad  Co.,  23  Vt.  387;  see  also  Vander- 
kar  V.  Rensselaer  k  Saratoga  Railroad  Co.,  13  Barb.  390.  But  under  the 
English  Railway  Acts,  where  the  company  is  required  to  make  crossings, 

(b)  The  question  is  differently  dis-  (c)  In  Indiana  it  is  no  answer  to 

posed  of,  at  least  so  far  as  form  goes,  an  action  for  injury  of  animals  on  the 

in  some  of  the  cases.     Thus,  in  Pitts-  track,  by  reason  of  a  want  of  a  fence, 

burg,  Bradford,  &  Buffalo  Railroad  Co.  that    an    allowance    was    made    the 

r.  McCloskey,  23  Am.  &  Eng.  Railw.  owner  for  fencing  in   the   award  of 

Cas.  86,  it  was  held  that  the  cost  of  land  damages.     It  is  still  the  duty  of 

fencing,  as  such,  was  not  an  element  the  road  to  fence.     Baltimore,  Pitts- 

of  damages,  but  that  the  extent  to  burg,  &  Chicago  Railway  Co.  r.  John- 

which  the  burden  of  fencing  would  son,  59  Ind.  188. 
depreciate  the  value  of  the  remaining 
land  might  properly  be  considered. 
[*483,  *484] 


§  rJT.]  OBLIGATION    TO    MAINTAIN.  511 

5.  In  some  cases  in  this  country  it  has  been  held  that  the  railway 
and  the  adjoininsx  land-owner  arc  to  defray  cqnal  pro]»ortiuns  of  the 
expense  of  maintaining  fences,  ni)on  the  i)rineipk  of  being  adjoining 

where  land  is  divided,  and  the  mode  of  determining  the  nature  of  the  crossings 
is  to  be  referred,  "  in  case  of  any  dispute,"  to  two  justices,  on  the  application 
of  the  land-owner,  it  was  held,  that  until  the  company  has  made  a  communi- 
cation, a  party  whose  land  has  been  severed  by  tlie  railway,  has  a  right  to  piuss 
from  one  portion  of  his  property  to  the  other  across  the  railway,  at  any  point, 
and  that  the  section  requiring  the  owner  to  pass  at  such  a  place  as  shall  *'  be 
appointed"  for  crossing,  means,  "when  such  places  shall  have  been  appointed." 
Grand  Junction  Railway  Co.  v.  White,  8  M.  &  W.  214;  s.  c.  2  liailw.  Cas. 
5o9.  And  where,  at  the  time  of  appraising  land  damages,  the  land-owner,  in 
the  presence  of  the  agents  of  the  company,  pointed  out  to  the  commissioner 
the  place  where  he  would  have  a  farm-crossing,  and  no  objection  was  made 
by  the  company,  and  the  sum  awarded  was  paid,  but  the  company,  in  construct^ 
ing  the  road,  were  throwing  up  an  embankment  at  that  point,  and  locating 
the  crossing  at  a  different  place,  where  it  would  be  inconvenient  for  the  land- 
owner, an  injunction  was  granted  until  the  company  should  either  make  a 
suitable  crossing  or  compensate  the  land-owner.  Wheeler  v.  Rochester  & 
Syracuse  Railroad  Co.,  12  Barb.  227;  IMilwaukee  &  Mississippi  Railroad  Co. 
V.  Eble,  4  Chand.  72.  It  is  here  held,  that  the  land-owner  is  entitled  to  in- 
clude, in  his  damages,  the  expense  of  fencing,  as  incidental  to  the  taking  of 
the  land.  But  the  contrary  is  held  in  a  very  elaborate  case  in  Iowa,  Henry  v. 
UulMique  &  Pacific  Railroad  Co.,  2  Clarke,  288.  The  argument  of  the  court 
in  that  case,  however,  is  unsatisfactory.  And  where  the  railway  at  first  con- 
tracted with  the  land-owner  to  build  the  fence  for  them  at  a  specified  price, 
but  a  controversy  arising  in  regard  to  land  damages,  the  commissioners  re- 
ported a  sum  which  was  finally  confirmed  by  the  court,  and  an  additional  sum 
for  the  expense  of  building  the  fence,  and  the  plaintiff  took  judgment  and 
execution  for  this  also,  and  subsequently  built  the  fence  according  to  his  con- 
tract with  the  company,  and  sued  the  company  for  the  price,  it  was  held  that 
he  could  not  recover,  the  former  judgment  having  merged  the  contract,  and 
imposed  on  him  the  duty  to  build  the  fence,  under  the  award  and  judgment. 
It  was  also  held  that  the  land-owner  could  not  recover  anything  beyond  the 
award  for  having  built  the  fence  according  to  the  original  contract,  which 
rendered  it  more  expensive  to  him  than  it  would  otherwise  have  been.  Curtis 
r.  Vermont  Central  Railroad  Co.,  2.'}  Vt.  G]-i]  s.  c.  1  Am.  Railw.  Cas.  258; 
see  Lawton  r.  Fitchburg  Railroad  Co.,  8  Cush.  2:10.  And  where  the  stntute 
requires  the  company  to  make  farm-crossings  where  they  divide  land,  it  is  not 
proper  for  the  jury,  in  assessing  compensation  to  the  land-owner,  to  include 
the  expense  of  a  bridge  for  the  purpose  of  a  farm -crossing.  Pliiladelphia, 
AVilmington,  &  Baltimore  Railroad  Co.  ?•.  Trimble,  4  Wh.irt.  47;  s.  c.  2  .\m. 
Railw.  Cas.  245.  In  the  case  of  Chicago  8c  Rook  Island  Railroad  Co.  v. 
Ward,  IG  111.  522,  where  the  company  covenanted  to  maintain  fences  on  land 
intersected  by  the  road,  and  failed  to  perform  the  covenant,  and  crops  were 
destroyed,  it  was  held  that  the  company  was  liable  for  the  value  of  the  crops 

[♦484J 


512  FENXE3.  [part  V. 

proprietors,  and  being  equally  interested  in  having  the  fence  main- 
tained, unless  the  land-owner  chooses  to  let  his  land  lie  in  common, 
and  in  that  case  the  company  must  be  at  the  whole  expense  of  fenc- 
ing, as  a  necessary  protection  and  security  to  their  business^ 

.crrowing  on  the  land  and  destroyed  as  of  the  time  when  fit  for  harvesting. 
This  does  not  seem  entirely  in  accordance  with  general  principles  on  this 
question.  The  case  professes  to  go  upon  the  authority  of  De  Wint  r.  Wiltie, 
9  Wend.  325.     But  see  §§  14S,  106. 

'  In  re  Rensselaer  &  Saratoga  Railroad  Co.,  4  Paige,  .5.53.  In  Northeast- 
ern Railroad  Co.  r.  Sineath,  8  Kich.  18.5,  it  is  held  that  damages  are  not  to  be 
assessed  for  fencing  through  unenclosed  land  used  for  grazing.  In  Louisville 
&  Frankfort  Railroad  Co.  r.  Milton,  14  B.  Monr.  75,  it  is  held,  that  where  one 
grants  the  right  of  building  a  railway  across  his  land,  neither  the  land-owner 
nor  the  company  is  bound  to  fence  adjoining  the  railway.  If  the  land-owner 
suffers  his  cattle  to  run  at  large,  as  he  may,  if  he  choose  to  incur  the  risk,  he 
cannot  recover  damages  of  the  company  for  any  injury  sustained  by  them, 
unless  it  might  have  been  avoided  by  the  agents  of  the  company,  with  due 
regard  to  the  safety  of  the  train  and  its  contents.  If  such  cattle,  permitted  to 
run  at  large  on  the  railway  track,  are  killed  accidentally  by  the  train,  when 
running  at  its  customary  speed,  the  owner  cannot  recover  of  the  company. 
The  court  here  discountenances  the  notion  that  seems  sometimes  to  have  pre- 
vailed, that  if  the  company  is  in  the  right  in  running  its  train,  and  especially 
where  cattle  are  trespassing  on  the  track,  it  may  destroy  them  at  will,  without 
incurring  any  resjHjnsibility.  And  in  regard  to  the  case  of  Xew  York  &  Erie 
BailroadCo.  r.  Skinner,  19  Penn.  St.  293,  the  court  says,  "it  is  not  disposed 
to  sanction  all  the  legal  doctrines  avowed  in  that  opinion."  Railways  are  onl} 
botmd  to  the  use  of  such  diligence,  prudence,  and  skill,  to  avoid  injury  to 
cattle  rightftdly  in  the  highway  at  a  road-crossing,  as  prudent  men  exercise 
in  the  conduct  of  their  own  business.  And  as  to  cattle  wrongfully  on  the 
railway,  unless  the  injury  is  caused  wilfully,  or  through  gross  negligence,  the 
company  is  not  liable.  Chicago  &  ilississippi  Railroad  Co.  c.  Patchin,  16  IlL 
193:  Great  Western  Railroad  Co.  r.  Thompson,  17  111.  131;  Quimby  r.  Ver- 
mont Central  Railroad  Co..  23  Vt.  357;  Central  Military  Tract  Railroad  Co.  r. 
Rockafellow,  17  111.  541:  Railroad  Co.  r.  Skinner,  19  Penn.  St.  298;  Illinois 
Central  Railroad  Co.  r.  Middlesmith,  46  111.  494.  But  this  latter  case  lays  down 
the  rule  somewhat  more  stringently  than  the  former  cases. 

In  White  r.  Concord  Railroad  Co.  10  Fost.  X.  H.  1S3,  it  was  held,  that 
where  the  statute  requires  railways  to  fence  and  maintain  proper  cattle-guard«. 
cattle-passes,  and  farm-crossings,  for  the  convenience  and  safety  of  the  land- 
owners along  the  side  of  the  road,  or  settle  with  the  land-owners  therefor,  and 
a  railway  divides  a  pasture,  and  a  crossing  is  made,  under  the  statute,  the 
land-owner  may  let  his  cattle  run  in  the  pasture  "  without  a  herdsman,''  and 
the  company  will  be  liable  for  their  destruction  while  crossing  the  track  from 
one  pasture  to  the  other,  unless  the  injury  was  caused  by  accident  or  by  the 
fault  of  the  owner,  or  unless  it  appears  that  the  company  has  settled  with  the 
owner  in  relation  to  such  guards,  passes,  and  farm-crossings.  And  it  was 
[•484] 


§  1-21.]  OBLIGATION    TO    MAINTAIN.  513 

•  6.  But  many  of  the  American  cases  assume  the  ground  that 
where  there  is  no  statute  imposing  the  duty  of  fencing  upon  the 
•company,  and  no  stipulation,  express  or  imj)lied,  between  the 

impany  and  the  land-owners  that  they  shall  maintain  fences, 
•  tliey  are  not  bound  to  do  so,  but  the  cummon-law  duty  of  keep- 
ing one's  cattle  at  home  rests  upon  the  land-owner.^    And  this 

ew  is  probably  consistent,  in  principle,  with  the  cases  where 
such  a  duty  is  held  to  result  from  the  appraisal  of  laud  damages, 

held,  also,  in  the  same  case,  where  the  plaintiff  deeded  the  land  to  the  com- 
pany on  condition,  '-said  corporation  to  fence  the  land  and  prepare  a  crossing, 
with  cattle-guards,  at  the  present  travelled  path,  on  a  level  with  the  track," 
that  this  w;is  not  such  settlement,  and  did  not  alter  the  le^al  relations  of  the 
}->arties.  In  this  case,  both  parties  being  in  the  right,  were  bound  to  the 
degree  of  prudence  which  is  to  be  expected  of  prudent  men.  The  railway, 
knowing  of  the  crossing,  and  of  the  liability  of  cattle  to  be  on  it,  Mas  lound, 
rather  than  the  land-owner,  to  keep  a  lookout.  In  Long  Island  Ilaiiroad  Co., 
3  Edw.  Ch.  4S7,  the  Vice-Chancellor  seems  to  consider  that  a  railway  company 
has  no  interest  in  having  its  road  fenced,  and  is  therefore  not  l>ound  to  contribute 
to  the  exj^nse  of  fencing,  which  is  at  variance  with  the  opinion  of  the  Chan- 
cellor (4  Paige,  553),  and  equally,  as  it  would  seem,  with  reason  and  justice. 
See  Campbell  v.  Mesier,  4  Johns.  Ch.  334.  In  Sullivan  f.  Philadelphia  & 
Reading  Railroad  Co.,  6  Am.  Law  Reg.  342;  s.  c.  30  Penn.  St.  234;  s.  c.  2 
Redf.  Am.  Railw.  Cas.  5G4,  the  subject  of  the  duty  of  naiUvay  companies 
to  fence  their  roads  for  the  security  of  passengers  is  discussed,  and  many 
sensible  practical  suggestions  made.     Infra,  §  192,  note  6;  §  204  n. 

»  Hurd  r.  Rutland  &  Burlington  Railroad  Co.,  25  Vt.  116,  123;  Xew  York 
&  Erie  Railway  Co.  r.  Skinner,  19  Penn.  St.  298;  Clark  r.  Syracuse  &  I'tica 
Railroad  Co..  11  Barb.  112;  Dean  r.  Sullivan  Railroad  Co.,  2  Fo.st.  N.  H.  316; 
Alton  &  Sangamon  Railroad  Co.  r.  Raugh,  14  111.  211.  Where,  on  appeal  frora 
the  first  appraisal  of  land  damages  where  the  erection  of  fences  h.-ul  been  speci- 
fied, th.at  was  vacated,  and  the  new  apprais.al  made  no  such  requin-ment  of 
the  company,  it  was  held  that  the  presumption  w.as,  that  the  whole  d.amage9 
were  .apprai.sed  in  money,  and  the  comj^any  was  not  l>onnd  to  build  fenct»s. 
Morss  r.  Boston  &  Maine  Rjiilroad  Co.,  2  Cush.  53^^;  Williams  r.  New  York 
Centnal  Railroad  Co.,  IS  Barb.  222.  It  seems  impossible  to  estimate  damages 
for  taking  land  for  the  use  of  a  railway,  without  taking  info  the  account  the 
expense  of  fencing,  lleniy  r.  Pacific  Railroad  Co..  2  Clarke.  22S;  Milwaukee 
&  Mississippi  Railroad  Co.  f.  Eble,  4  Chand.  72;  Northe.vst^rn  Railroad  Co.  r. 
Sinoafh,  S  Rich.  1S5;  In  re  Rensselaer  &  Saratoga  Railroad  Co.,  4  Paige.  533. 
And  those  cases  which  hold  the  comp.any  not  bound  to  fence,  unless  required 
to  do  so  by  stitut^^  or  contract,  go  on  the  presumption  that  they  have  already 
paid  the  expense  of  fencing  in  the  land  damages.  See  B.ilfimore  &  Ohio 
Railroad  Co.  r.  Lamborn.  12  Md.  2r)7;  Madison  &  Indianaj>->lis  Railtwid  Co  r. 
Kane,  11  Ind.  375;  Stucke  r.  Milwaukee  &  Mississij^pi  Railn-»ad  Co.,  9  Wis. 
202;  Richards  r.  Sacramento  Valley  Railroad  Co.,  IS  Cal.  351.  • 

VOL.  1,  — S3  [•4S5-*4"^T] 


514  FENCES.  [part    V. 

subject  to  the  expense  of  building  fences  being  borne  by  the  com- 
pany, or  where  the  assessment  specifically  includes  the  expense  of 
fencing,  and  that  has  not  been  paid.  And  in  the  Irish  courts  the 
company  is  only  bound  to  erect  such  accommodation  works  for  the 
benefit  of  the  land-owners  as  are  a  compliance  with  the  specifica- 
tions in  the  award.  This  is  true  even  where  the  railway  crosses 
a  private  road  over  a  farm  in  the  right  of  some  third  party  as  lessee 
of  the  farm  obliquely,  and  the  award  adjudicating  the  claim  of 
such  lessee  specified  only  a  crossing  over  the  railway  as  a  "  level 
crossing"  at  a  given  point,  and  the  company, gave  a  crossing  at 
right  angles  with  the  road,  which  did  not  connect  the  termini  of 
the  road,  and  gave  no  access  to  it ;  it  was  nevertheless  held  that 
this  was  a  compliance  with  the  award.^  This  is  certainly  not  a 
fair  construction  of  the  award,  as  applicable  to  the  subject-matter ; 
and  it  does  not  require  any  gift  of  prophecy  to  foretell  that  the 
doctrine  of  *  the  case  will  not  be  followed  in  this  country,  and, 
with  deference  be  it  said,  it  ought  not  to  be  followed  anywhere. 

7.  And  in  some  of  the  states  the  rule  of  the  common  law,  in 
regard  to  the  duty  resting  upon  the  owner  of  domestic  animals  to 
restrain  them,  has  not  been  adopted  so  as  to  charge  the  owner 
with  negligence  for  suffering  them  to  go  at  large.^*^ 

8.  But  it  is  held,  that  where  the  statute  imposes  upon  the  com- 
pany the  duty  of  maintaining  fences  and  cattle-guards  at  farm- 
crossings,  and  provides  that  until  such  fences  and  cattle-guards 
shall  be  duly  made  the  corporation  and  its  agents  shall  be  liable 
for  all  damages  from  such  defect,  this  renders  a  lessee  of  the  road 
liable  for  injury  to  cattle  caused  by  his  operating  it  without  proper 
cattle-guards  at  farm-crossings.^^ 

8  Mann  v.  Great  Southern  &  Western  Railway  Co.,9Tr.  Com.  Law,  105. 

^°  Kerwhacker  v.  Cleveland,  Columbus,  &  Cincinnati  Railroad  Co.,  3  Ohio 
St.  172.  In  such  cases  the  company  is  bound  to  use  reasonable  care  not  to 
injure  animals  thus  rightfully  at  large.  lb.;  Cleveland,  Columbus,  &  Cincin- 
nati Railroad  Co.  v.  Elliott,  4  Ohio  St.  474.  If  the  owner  is  to  be  charged 
with  remote  negligence  in  suffering  his  cattle  to  go  at  large,  under  such  cir- 
cumstances, and  the  servants  of  the  company  are  guilty  of  want  of  care  at  the 
time  of  the  injury,  which  is  the  pr-oximate  cause  of  it,  the  company  is  still  lia- 
ble, lb.;  Chicago  &  Mississippi  Railroad  Co.  v.  Patchiii,  10  111.  198;  In- 
dianapolis &  St.  Louis  Railroad  Co.  v.  Caldwell,  9  Ind.  397. 

"  Clement  v.  Canfield,  28  Vt.  302.  And  the  same  rule  applies  to  a  com- 
pany running  its  cars  over  another  company's  line  by  arrangement  between 
the  companies.  If  the  road  is  not  properly  fenced,  the  company  running  the 
[*488] 


§  127.]  OBLIGATION    TO    MAINTAIN.  fjlo 

9.  A  general  statute,  requiring  fences  to  be  maintained  by  rail- 
ways upon  the  sides  of  their  road,  applies  to  land  acquired  bv 
purchase  as  well  as  to  that  taken  in  invitinn.^' 

*  10.  And  tlic  statute,  requiring  farm-crossings  "for  the  use  of 
proprietors  of  land  adjoining,"  has  no  reference  to  the  (piantity 
of  land  to  be  accommodated,  but  only  that  the  crossing  nmst  be 
useful. '2  (,7) 

11.  .Where  the  statute  requires  the  company  to  erect,  at  farm- 
crossings,  bars  or  gates,  to  prevent  cattle,  &c.,  from  getting  upon 
the  railway,  and  the  land-owner  who  is  entitled  to  such  protec- 
tion refuses  to  have  such  bars  or  gates  erected,  or  requests  the 
company  not  to  erect  them,  or  undertakes  to  erect  them  himself, 
he  cannot  maintain  an  action  against  the  company  for  not  com- 

trains  by  which  the  damage  is  caused  will  be  responsible,  although  it  be  the 
default  of  the  other  company,  for  which  that  is  also  responsible  to  the  party 
injured.  Illinois  Central  Railroad  Co.  v.  Kanouse,  39  111.  272.  An  order  on 
a  railway  for  making  farm  accommodations  must  specify  the  time  within 
which  they  shall  be  made.  Keilh  v.  Cheshire  Railroad  Co.,  1  Cray,  Gil. 
And  where  the  act  allowing  a  railway  company  to  lease  its  road  is  on  the  ex- 
press condition  that  it  be  not  thereby  exonerated  from  any  of  its  duties  or 
liabilities,  this  must  include  the  maintaining  of  fences.  Whitney  v.  Atlantic 
&  St.  Lawrence  Railroad  Co.,  44  Me.  3G2.  Where  a  company  permits  its 
cattle-guards  to  remain  filled  with  snow,  so  that  cattle  which  have  strayed 
upon  the  highway  without  any  negligence  on  the  part  of  the  owner  pa.«s  over 
such  guiirds,  and  in  con.sequence  are  injured  by  a  passing  train,  the  company 
is  liable  for  the  damages.  Donnigon  v.  Chicago  &  Northwestern  Railroad  Co  . 
18  Wis.  28. 

'-  Clarke  v.  Rochester,  Lockport,  &  Niagara  Falls  Railroad  Co.,  18  Barb. 
350.  A  fence  built  in  zigzag  form  of  rails,  half  the  length  on  the  land  taken 
for  the  railway  and  half  on  the  land  of  the  adjoining  proprietor,  is  a  compli- 
ance with  the  statute  requiring  the  fence  to  be  built  on  the  side  of  the  road. 
Ferris  v.  Van  Buskirk,  18  Barb.  397.  And  where  the  statute  provides  that, 
on  certain  proceedings,  railway  companies  may  be  compelled  to  provide  farm- 
crossings  and  cattle  passes  for  the  owners  of  land  intersected  by  the  company'.^ 
road,  and  no  such  proceedings  have  been  taken,  the  company  is  not  liable  to 
an  action  for  damages  resulting  from  the  want  of  necessary  farm-crossinga 
and  cattle  passes,  unless  it  appears  that  the  company  had  contracted  to  build 
them.  Horn  v.  Atlantic  &  St.  Lawrence  Railroad  Co.,  3."}  N.  H.  109;  s.  c. 
30  N.  II.  440.  Where  the  railway  company  contracts  to  build  fences  nn<i 
farm-crossings,  this  obliges  them  to  erect  bars  or  gates  at  such  crossings,  as 
required  by  statute.     Poler  v.  New  York  Central  Railroad  Co.,  16  N.  Y.  47G. 

(d)  The  owner  of  farm  lands  has     Kansas  City  v^-  Emporia  Railroad  Co. 

a  reasonable  right  to  farm-crossings,     v.  Kregelo,  32  Kan.  GU8. 

[•489] 


516  FENCES.  [part   V. 

plying  with  the  statutc.^^  A  court  of  equity  will  not  decree 
*  specific  performance  of  a  covenant  by  a  railway  company  to 
maintain  and  keep  in  repair  the  cattle-guards  on  the  line  of  plain- 
tiff's land.^^  Nor  will  the  Court  of  Chancery,  upon  any  general 
right,  direct  that  farm-crossings,  agreed  to  be  built  by  a  railway 
company,  shall  be  made  under  its  direction,  or  at  its  discretion.^^ 
12.  Railways  are  not  bound  to  maintain  fences  upon  their  roads 
so  as  to  make  them  liable  to  their  own  servants  for  injuries  hap- 
pening in  consequence  of  the  want  of  such  fences.  And  where 
the  statute  makes  them  liable  for  all  injuries  done  to  cattle,  &c., 
by  their  agents  or  instruments  until  they  fence  their  road,  the 
liability  extends  only  to  the  owners  of  such  cattle  or  other  ani- 
mals, and  this  liability  is  the  only  one  incurred.^^ 

13  Tombs  V.  Rochester  &  Syracuse  Railroad  Co.,  18  Barb.  583.  But  where 
the  statute  requires  the  commissioners  to  prescribe  the  "  time  when  such 
works  are  to  be  made,"  and  the  owner  has  the  right,  by  statute,  to  recover 
double  damages,  "by  reason  of  failure  to  erect  the  works,"  and  the  commis- 
sioners fail  to  prescribe  the  time,  no  action  will  lie.  Keith  v.  Cheshire  Rail- 
road Co.,  1  Gray,  014.  When  the  statute  requires  fences  to  be  maintained  by 
railway  companies,  it  must  be  done  before  they  begin  running  trains.  Clark 
V.  Vermont  &  Canada  Railroad  Co.,  28  Vt.  103.  And  in  Gardiner  v.  Smith, 
7  Mich.  410,  it  was  held  to  attach  as  soon  as  the  company  has  possession  of 
the  land  for  construction.  Since  the  decision  of  the  case  of  Clark  v.  Vermont 
&  Canada  Railroad  Co.,  supra,  the  same  court  held,  that  during  the  construc- 
tion of  a  railway,  the  company  in  such  case  was  bound,  either  by  fences  or 
other  sufficient  means,  to  protect  the  fields  of  land-owners  adjoining  the  rail- 
way. And  whether  the  company  has  used  the  proper  precautions  to  prevent 
the  escape  of  the  land-owner's  cattle  or  the  intrusion  of  other  cattle,  during 
such  construction,  is  a  question  of  fact,  in  each  particular  case  to  be  deter- 
mined by  the  jury.  Holden  r.  Rutland  &  Burlington  Railroad  Co.,  30  Vt. 
297.  Where  the  contractor  for  building  a  railway  took  away  the  fences  in 
course  of  con.struction,  and  the  sheep  of  the  land-owner  escaped  thereby  and 
were  lost,  he  was  held  responsible  for  the  loss.  Gardiner  v.  Smith,  7  Mich. 
410.  And  it  will  make  no  difference  that  the  land-owner  turned  the  sheep 
into  the  lot  after  the  land  was  taken  possession  of  by  the  contractor,  and  he 
was  constantly  throwing  down  tlie  fences  to  carry  forward  the  work.  lb. 
But  a  railway  company  cannot  fence  its  road  by  means  of  willows  set  on  the 
line  of  the  land  taken,  and  whicli  in  growing  will  injure  the  adjoining  land 
by  the  extension  of  their  roots,  there  being  no  controlling  necessity  of  fencing 
in  that  mode.  Brock  v.  Connecticut  &  Passumpsic  Rivers  Railroad  Co.,  35 
Vt.  373. 

"  Columbus  &  Shelby  Railway  Co.  r.  Watson,  26  Ind.  .50. 

I''  Darnley  r.  London,  Chatham,  &  Dover  Railway  Co.,  Law  Rep.  2  H.  L.  43. 

1^  Langlois  v.  Buffalo  &  Rochester  Railroad  Co.,  19  Barb.  364.  But  in 
[*490] 


§  127.]  OBLIGATION   TO    MAINTAIN.  517 

13.  Where  the  statute  makes  railways  liable  for  cattle  killed  by 
thciii  without  reference  to  their  ncglijrence,  all  that  is  necessary  to 
entitle  the  party  to  recover  is  to  show  the  fact  that  the  cattle  were 
killed  by  the  company  and  that  he  was  the  owner.'' 

'  14.  And  where  it  is  the  duty  of  the  company  to  fence  tlu-  hind 
adjoining  their  road,  and  they  omit  to  do  so,  whereby  cattle  escape 
upon  the  track  and  are  killed,  they  are  liable  in  damages  witiiont 
any  [)roof  of  care  on  the  part  of  the  owner  to  restrain  them.'^ 
And  evidence  of  notice  to  the  owner  that  the  animal  had  escaped 
two  or  three  times  before  and  had  been  up(jn  the  track,  is  imma- 
terial.'*' But  where  the  duty  of  maintaining  fences  is  upon  the 
land-owner,  and  cattle  escape  and  are  killed  upon  *  the  track,  the 
company  are  not  liable  without  })roof  of  due  care  on  the  part  of 
the  owner  to  restrain  thcm.'^  The  statute  requiring  railways 
thereafter  constructed  to  fence  their  roads  on  both  sides,  does  not 
apply  to  a  road  in  the  process  of  construction  at  the  date  of  the 
act.'^  The  statute  requiring  railways  to  fence  their  roads,  and 
making  them  liable  for  injury  to  cattle  without  regard  to  the  negli- 
gence of  the  owner,  or  his  bcinu'  an  owner  of  adjoining  land,  is  a 
police  regulation.-**  But  this  liability  does  not  extend  to  animals 
injured  by  fright.^' 

McMillan  v.  Saratoga  &  Washington  Railroad  Co.,  20  Barb.  449,  it  is  con- 
ceded the  company  would  have  been  liable  to  the  representative  of  the  engi- 
neer, who  was  killed  by  the  train  running  on  cattle  which  came  upon  tlie  track 
through  defect  of  fences,  which  it  was  the  duty  of  the  com[iany  to  maintain, 
if  they  had  been  shown  to  have  had  actual  knowledge  of  such  defect  before 
the  injury.     See  infra,  §  131. 

"  Nashville  &  Chattanooga  Railroad  Co.  r.  Peacock,  25  Ala.  229.  See 
also  Williams  ?>.  New  Albany  &  Salem  Railroad  Co.,  5  Ind.  Ill;  Lafayette  & 
Indianapolis  Railroad  Co.  i'.  Shriner,  G  Ind.  141.  In  this  Ciuse  it  was  held, 
that  such  a  statute  had  no  reference  to  the  case  of  cattle  killed  at  a  road-cross- 
ing, as  that  was  a  place  which  could  not  be  protected  either  by  fences  or  cattle- 
guards. 

^*  Rogers  v.  Newburyport  Railroad  Co ,  1  Allen,  IG. 

19  Stearns  v.  Old  Colony  &  Fall  River  Railroad  Co.,  1  Allen,  493.  And 
the  burden  is  on  the  plaintiff  in  an  action  against  a  railway  company  for  dam- 
ages caused  by  defect  of  fences  on  its  line,  to  show  tliat  the  company  was 
bound  to  maintain  such  fences.  Baxter  v.  Boston  &  Worcester  Railroad  Co., 
102  Mass.  38:). 

^  Indianapolis  &  Cincinnati  Railroad  Co.  v.  Townsend.  10  Ind.  38;  .Tefferson- 
ville  Railroad  Co.  v.  Applegate,  10  Ind.  49;  Indianapolis  &  Cincinnati  Railmad 
Co.  I'.  Meek,  10  Ind.  502;  Jefferson ville  Railroad  Co.  r.  Dougherty.  10  Ind.  549. 

2'  Peru  Railroad  Co.  v.  Ilaskett,  10  Ind.  409.     And  the  company  is  not  lia- 

[M91] 


518  FENCES.  [part   V. 

15.  Railway  companies  arc  not  liable  for  injuries  to  animals  at 
highway  crossings,  although  the  crossing  had  been  abandoned  by 
the  public  for  two  years  and  the  highway  changed,  it  not  appear- 
ing to  have  been  vacated  in  the  mode  prescribed  by  statute,  so  as 
to  justify  the  company  in  fencing  their  track  across  it.^^ 

16.  Railway  companies  in  England  are  not  held  responsible  for 
injuries  to  cattle  transported  to  their  stations,  where  the  injury 
is  caused  by  their  escaping  upon  the  track  through  defects  of  the 
fence  about  the  cattle-yard  ;  nor  for  the  cattle  being  frightened  by 
one  of  the  porters  of  the  company  coming  out  of  the  station  into 
the  cattle-yard,  having  a  lantern,  such  as  was  ordinarily  used,  in 
his  hand ;  it  being  no  evidence  of  negligence  on  the  part  of  the 
company's  servants.^^  Jt  -v^as  considered  here  that  the  cattle  had 
been  delivered  to  the  plaintiff,  and  it  was  his  fault,  since  he  knew 
the  yard  was  not  fenced,  and  had  himself  pronounced  it  an  unsafe 
place,  not  to  guard  against  their  escape. 

17.  It  appeared  in  one  case^^  that  the  plaintiff's  horse  had  es- 
caped *  in  the  night-time  from  his  pasture  upon  the  railway  track, 
on  account  of  the  want  of  proper  fence  along  the  line  of  the  road, 
and  w^as  found  in  the  morning  a  mile  from  the  plaintiff's  land  in 
a  rocky  pasture  seriously  injured  in  the  leg  ;  and  there  was  some 
evidence  tending  to  show  that  the  injury  was  received  in  the  pas- 
ture where  he  was  found.  The  court  charged  the  jury  that  if  they 
were  satisfied  there  was  a  clear  connection  between  the  escape  of 
the  horse  and  the  injury  received,  the  plaintiff  was  entitled  to 
recover.  This  was  held  erroneous  in  not  requiring  the  jury  to 
discriminate  between  a  direct  and  a  remote  connection  between 
the  neglect  of  the  company  and  the  damage  to  the  plaintiff's  horse, 
as  he  could  only  recover  upon  the  former  ground. 

18.  In  this  case-*  the  plaintiff's  cows  were  killed  by  escaping 

ble  for  cattle  killed  in  the  highway  without  its  fault,  where  the  track  of  the 
road  was  fully  fenced.     Northern  Indiana  Railroad  Co.  v.  Martin,  10  Ind.  460. 

22  Indiana  Central  Railroad  Co.  v.  Gapen,  10  Ind.  292. 

23  Roberts  v.  Great  Western  Railroad  Co.,  4  C.  B.  N.  s.  506.  Railway  com- 
panies are  not  bound  to  fence  their  depot  grounds.  Davis  v.  Burlington  & 
Missouri  River  Railroad  Co.,  26  Iowa,  519. 

24  Ilolden  r.  Rutland  &  Burlington  Railroad  Co.,  30  Vt.  297.  Where  the 
plaintiff  had  knowledge  at  evening  that  his  fence  was  in  danger  of  being  car- 
ried off  by  a  flood,  and  knew  his  cattle  would  in  consequence  be  liable  to  come 
upon  the  railway  track,  and  refused  to  remove  them  from  the  pasture,  and 
before  morning  the  fence  was  carried  off,  and  the  cattle  came  upon  the  track 

[*492] 


§  127.]  OBLIGATION   TO    MAINTAIN.  .019 

from  ilic  plaintiff's  pasture,  and  going  into  a  piece  of  land  leased 
hy  the  plaintiff  to  the  defendants,  to  be  used  by  them  as  a  wood- 
yard,  and  from  that  upon  the  defendants'  track,  for  want  of  fence 
about  the  wood-yard.  The  evidence  left  it  doubtful  whether  the 
defendants  were  to  have  the  exclusive  occupancy  of  the  wood- 
yard,  or  were  to  fence  the  same,  as  between  them  and  the  plain- 
tiff ;  it  was  held  that,  in  order  to  recover  of  the  defendants  for 
killing  the  cows,  it  should  be  found  by  the  jury  that  it  was  the 
duty  of  the  defendants  to  maintain  the  fence  for  defect  of  which 
the  cows  escaped  upon  the  defendants'  track. 

19.  The  statute  of  New  York,  requiring  railways  to  maintain 
cattle-guards  at  road-crossings,  applies  to  streets  in  a  village,  but 
not  so  as  to  impede  the  passage  along  the  streets,  or  render  them 
unsafe  for  persons  passing.^^  (e) 

20.  It  has  often  been  declared  that  railway  companies,  to  relieve 
themselves  from  responsibility  for  damage  caused  by  their  trains 
to  domestic  animals,  must  not  only  build  but  maintain  in  good 
*  repair  all  fences  and  cattle-guards  required  of  them  by  law.^^  (/) 
If  such  structures  arc  allowed  to  fall  into  decay,  or  are  acciden- 
tally thrown  open  or  thrown  down,  and  not  closed  aud  restored 
within  a  reasonable  time,  the  company  are  responsible  to  the 
owner  of  cattle  injured  by  such  neglect,  provided  he  is  not  in 

and  were  killed  by  a  passing  train,  it  was  held  that  the  plaintiff  could  not 
recover.  Michigan,  Northern,  &  Soutliern  Railroad  Co.  i'.  Shannon,  l:J  Ind. 
171.  There  are  numerous  cases  in  ludiana  where  matters  of  practice  under 
the  statute  of  that  state  are  discussed.  Wright  i'.  Gos.sett,  I.j  Iml.  119;  In- 
dianapolis, Pittsburg  &  Cleveland  Railroad  Co.  v.  Fisher,  15  Ind.  20:);  Same  v. 
Kercheval,  10  lud.  84;  Ohio  &  Mississippi  Railroad  Co.  v.  Quier,  10  Ind.  440. 
And  it  has  been  held  that  the  killing  of  each  of  several  animals  killod  at  one 
time  constitutes  a  separate  and  indivisible  cause  of  action,  and  two  of  these 
cannot  be  united  to  give  jurisdiction  to  the  Circuit  Court.  Indianapolis  & 
Cincinnati  Railroad  Co.  v.  Kercheval,  l21  Ind.  139. 

••^5  Brace  i'.  New  York  Central  Railroad  Co.,  27  N.  Y.  209. 

26  McDowell  V.  New  York  Central  Railroad  Co.,  37  Barb.  19."). 

(e)  So   of    that    provision   of   the  vcnicnce  of   the  land-owner,   be  left 

statute  requiring  the  road  to  be  fenced,  open  continually  by  the  agents  of  the 

Vacant  lots  fronting  the  road  must  be  company  or  by  i>ersons  doing  busine.<is 

fenced.     Crawford  v.  New  York  Cen-  with  it,  the  fence  is  not  maintained 

tral  &  Hudson  River  Railroad   Co.,  within   the   meaning  of   the  statute. 

18  Ilun,  108.  Spinner  v.  New  York  Central  &  Ilud- 

(/)  If  a  gate,  erected  for  the  con-  sou  River  Railroad  Co.,  67  N.  Y.  153. 

[*403] 


520  FENCES.  [part  V. 

fault  himself.2'5  But  even  where  such  fences  and  cattle-guards  are 
properly  maintained,  the  railway  companies  will  be  held  respon- 
sible for  all  damage  to  animals  caused  by  the  wilful  or  negligent 
conduct  of  their  agents  and  employes. 

21.  In  New  Hampshire  the  common-law  rule  of  responsibility 
for  damage  only  as  to  cattle  rightfully  in  the  adjoining  fields  is 
maintained  in  regard  to  the  duty  of  railway  companies  to  fence 
their  track,  and  an  omission  of  this  duty  will  not  render  them 
responsible  for  an  injury  happening  to  cattle  trespassing  upon  the 
track  or  upon  the  lands  adjoining.^^  (^)  It  is  here  held  that  rail- 
way companies  are  not  responsible  to  the  owner  of  lands  adjoining 
their  track  for  damage  done  upon  such  lands  by  cattle  suffered 
by  their  owners  to  run  at  large  in  the  highway,  and  thence  escap- 
ing upon  the  railway  track,  and  thus  coming  upon  such  adjoining 
lands,  through  defect  of  fences,  Avhich  it  is  the  duty  of  the  com- 
pany to  maintain.  But  this  seems  questionable. (A)  We  should 
have  said,  without  much  examination  or  reflection,  that  although 
the  owners  of  the  cattle  are  clearly  responsible  for  all  such  dam- 
age, it  is  not  quite  certain  the  company  may  not  also  be  held 
responsible  for  the  same  damage  to  the  land-owner,  inasmuch  as 
the  law  casts  upon  them  the  duty  of  maintaining  the  fences 
against  the  land,  and  the  damage  occurred  in  consequence  of  the 
omission.  But  the  court  unquestionably  took  the  surest  course 
to  visit  the  responsibility,  in  the  first  instance,  where  it  ultimately 
belongs.  It  is  here  further  said  that  railways  are  bound  to  main- 
tain proper  cattle-guards  at  farm-crossings,  and  are  responsible 
for  all  damages  to  cattle  rightfully  there  by  such  omission,  but 
are  not  responsible  for  any  injury  to  cattle  suffered  to  go  at  large 

"  Chapin  v.  Sullivan  Railroad  Co.,  39  N.  II.  53. 

(ff)  Giles  V.  Boston  &  Maine  Rail-  (h)  Such,  however,  is  the  rule  un- 
read  Co.,   .55  N.   H.   552.     Nor,  the  der  the  statutes  of  various  other  states, 
statute  having  been  complied  with,  is  Gowan  v.  St.  Paul,  Stillwater,  &  Tay- 
the  company  liable  for  injuries  to  aui-  lor's  Falls  Railroad  Co.,  25  Minn.  32S; 
mals  that  have  come  upon  the  track  Peoria,   Decatur,   &  Evaiisville   Rail- 
through  gates  or  bars  left  open  by  an  way  Co.   v.   Schiller,    12    Brad.  443. 
adjoining  proprietor,  unless  the  injury  But  see  Biggerstaff  v.  St.  Louis,  Kan- 
miglit  have  been  avoided  by  proper  sas  City,  &  Northern  Railroad  Co  ,  CO 
management  of  the  train.     Hook  v.  Mo.  567. 
Worcester  &   Nashua  Railroad  Co., 
58  N.   II.  251. 
[*493] 


§  127.]  OBLIGATION   TO    MAINTAIN.  .021 

in  the  highway,  or  wrongfully  there  for  any  cause,  although  such 
injury  nuiy  occur  by  reason  of  the  omission  to  build  and  niuintuin 
such  cattle-guards/'^^ 

22.  A  railway  company  are  responsible  for  all  damage  done  to 
cattle  rightfully  in  lands  adjoining  the  railway  track  through  de- 
fect *  of  fences  which  the  company  are  bound  to  maintain;  and 
they  cannot  excuse  themselves  from  responsibility  by  showing 
that  the  road  is  operated  for  the  benefit  of  other  parties,  and 
especially  so  long  as  it  is  done  under  the  direction  and  control 
of  the  company.-'-^ 

23.  The  building  of  fences  along,  the  line  of  a  railway  track  is, 
no  doubt,  in  regard  to  the  security  of  travel  thereon,  to  be  re- 
garded as  a  matter  of  police,  and  a  duty  which  the  C(jmpanies 
cannot  shift  upon  others  by  contracts  to  maintain  such  fences.* 
And  it  makes  no  difference  by  whom  such  fences  were  built :  the 
company  is  bound  to  maintain  them  in  good  condition  at  all 
times.^^  But  it  has  been  held  in  the  English  courts,^^  that  the 
statute  requiring  the  companies  to  fence  their  roads,  as  between 
them  and  the  land-owners,  does  not  impose  any  duty  to  fence 
them  in  order  to  secure  the  safety  of  passengers ;  and  therefore 
the  companies  may,  so  far  as  the  statute  duty  is  concerned, 
contract  with  the  land-owners  to  maintain  the  fences  along 
the  lino,  and  will  thus  escape  responsibility  under  the  statute. 
And  it  is  further  held,  in  this  case,  that  the  duty  of  railways 
towards  their  passengers,  so  far  as  fencing  their  roads  is  con- 
cerned, as  at  common  law,  is  one  of  diligence,  in  order  to  ren- 
der the  passing  of  trains  as  secure  as  ])racticable,  and  does  not 
amount  to  a  positive  warranty  to  keep  cattle  ofT  the  line,  or  to 
fence  the  same,  except  so  far  as  that  may  be  regarded  as  a  neces- 
sary precaution,  in  order  to  secure  safety  to  their  passengers 
under  the  circumstances.  But  in  an  American  case,^  where  a 
child  eighteen  months  old  came  upon  the  track  of  a  railway, 
through  defect  of  fences  vv^hich  it  was  the  duty  of  the  company  to 

2«  Infra.  §  128,  pi.  7. 

^  Wyinaii  v.  Penobscot  &  Kennebec  Railroad  Co.,  4G  Me.  162. 

«o  New  Albany  &  Salem  Railroad  C.>.  t'.  Tilton,  12  Ind.  3;  Same  v.  Maiden, 
12  Ind.  10.     See  also  Illinois  Central  Railroad  Co.  «;.  Swearingen,  33  111.  3S9. 

31  New  Albany  &  Salem  Railroad  Co.  r.  Pace,  13  Ind.  411. 

82  Buxton  f.  Northeastern  Railway  Co.,  Law  Rep.  3  Q.  B.  549;  supra,  §  120, 
note  32. 

»8  Schmidt  !'.  Milwaukee  &  St.  Paul  Railroad  Co.,  23  Wis.  ISrt. 

[M94J 


522  FENCES.  [part  v. 

build,  and  was  injured  in  consequence,  it  was  held  that  a  child  so 
young  could  not  be  guilty  of  negligence,  and  that  the  omission  to 
build  the  fence  by  the  company  was  negligence,  and  made  the 
company  responsible. 

24.  A  land-owner,  who  by  contract  with  the  company  is  bound 
to  maintain  the  fences  through  his  land,  cannot  recover  of  the 
company  for  damage  to  cattle  by  reason  of  defect  of  fences, 
unless  he  show  negligence  on  the  part  of  the  company.^*  (i)  But 
a  railway  company  is  responsible  for  cattle  killed  by  their  trains 
at  a  mere  private  road-crossing,  which  was  not,  but  might  have 
been,  easily  fenced  by  tliem.^^  This  case  was  controlled  by  the 
statute.  A  sufficient  fence  in  Indiana  is  held  to  be  such  an  one 
as  good  husbandmen  usually  keep."^^  But  in  many  of  the  states 
what  shall  constitute  legal  fences  is  defined  by  statute. 

25.  Railway  companies  are  not  responsible  for  damage  accru- 
ing to  domestic  animals  from  want  of  fences,  at  points  which  do 
not  properly  admit  of  being  fenced,  as  in  the  immediate  vicinity 
of  engine-houses,  machine-shops,  car-houses  and  wood-yards.^"  (j) 

3*  Terre  Haute  Railroad  Co.  r.  Smith,  10  Ind.  102. 

35  Indiana  Central  Railroad  Co.  j;.  Leamon,  18  Ind.  173. 

2^  Toledo  &  Wabash  Railroad  Co.  v.  Thomas,  18  Ind.  215.  If  such  a  fence 
is  maintained,  the  company  is  liable  only  as  at  common  law  for  negligence. 
Infra,  pi.  34. 

3^  Indianapolis  &  Cincinnati  Railroad  Co.  v.  Oestel,  20  Ind.  231 ;  Galena  & 
Chicago  Union  Railroad  Co.  c.  Griffin,  31  111.  303. 

0')   Where  the  company  builds  a  Railroad  Co.,  22  Am.  &  Eng.  Raihv. 

cattle-guard  at  the  request  of  the  ad-  Cas.   574;   Prickett  v.  Atchison,  To- 

jacent   proprietor,   and   maintains   it  peka,  &  Santa  Fe  Railroad  Co.,   23 

thirty  3'ears,  it  may  cease  to  maintain  Am.  &  Eng.  Railw.  Cas.  232.     Nor 

it  without  notice  to  the  owner.    Vicks-  where  it  can  fence  but  one  side.     In- 

burg    &    Meridian    Railroad    Co.    r.  diana,  Bloomington,  &  Western  Rail- 

Dixon,  61  Miss.  119.  way  Co.  v.  Leak,  89  Ind.  596.     But 

(J)  Or  of  a  saw-mill  or  a  hay-press,  the  company  is  not  excused  from  fenc- 

Pittsburg,    Cincinnati,    &    St.    Louis  ing  in  a  town,  unless  a  fence  would 

Railway  Co.  ».  Bowyer,  45  Ind.  490;  be  improper.    Pittsburg,  Cincinnati,  & 

Ohio  &  Mississippi    Railway  Co.    v.  St.  Louis  Railway  Co.  v.  Laufraan,  78 

Rowland,  50  Ind.  349.     Nor  around  Ind.  319.     Nor  at  a  place  where  there 

a  warehouse  in  a  village  adjoining  a  is  a  switch  merely,  unless  it  is  on  sta- 

switch.     Toledo,  Wabash,  &  Western  tion  grounds.    Comstocky.  Des  Moines 

Railway  Co.  v.  Chapin,   66  111.  504.  Valley  Railroad   Co.,  32  Iowa,   376. 

Nor  about  station  grounds.    McGrath  Nor  along  its  way  through  a  town  or 

V.  Detroit,  Mackinac,  &  Marquette  city,  merely  because  it  is  in  a  town, 
[*494] 


§  127.]  OBLIGATION   TO    MAINTAIN.  528 

And  where  the  fence  along  a  railway  line  is  destroyed  by  unavoid- 
able accident,  as  l)y  fire,  and  is  repaired  in  a  reasonable  time,  but  in 
the  mean  time  cattle  t;et  at  laruv  by  reason  of  the  want  of  fence, 
and  arc  injured,  the  comi)any  will  not  be  held  responsible.^  (A:) 

20.  In  Indiana  railway  conii)anies  are  by  statute  made  respon- 
sible *  for  animals,  but  not  for  persons,  injured  upon  their  roads, 
when  they  might  be,  but  are  not  fenced,  irrespective  of  the  ques- 
tion of  ncgligence.(Z)  But  when  a  proper  fence  is  maintained  in 
all  places  where  it  is  required  to  be,  the  company  are  not  respon- 
sible for  animals  injured,  except,  as  at  common  law,  where  there 
is  negligence  on  their  part  conducing  to  the  result,  and  none  on 
the  part  of  the  owner.^^ 

27.  The  requirements  of  railway  companies  as  to  fencing  their 
roads  are  not  intended  exclusively  for  the  protection  of  domestic 
animals,  but  also  for  the  security  of  travel  and  transportation,  and 
where  the  fence  is  thrown  down  by  third  persons  without  the 
knowledge  of  the  company  that  it  is  down,  and  cattle  stray  upon 
the  track  and  receive  injury,  the  company  is  not  responsible  for 
the  damage.*'' 

28.  Where  the  plaintiff  is  guilty  of  negligence  wliich  immedi- 
ately and  directly  contributes  to  the  injury  of  cattle,  he  cannot  re- 

88  Toledo  &  Wabash  Railroad  Co.  v.  Daniels,  21  Iiid.  1?30;  Indianapolis, 
Pittsbnr<?,  &  Cleveland  Railroad  Co.  i-.  Truitt,  21  Ind.  IGJ. 

39  Thayer  v.  St.  Louis,  Alton,  &  Tene  Haute  Railroad  Co.,  2J  Ind.  26; 
McKinuey  y.  Ohio  &  Mississippi  Railroad  Co.,  22  Ind.  99,  where  it  is  held  to 
make  no  difference  as  to  the  responsibility  of  the  company  that  the  road  is 
operated  by  a  receiver. 

*^  Toledo  &  Wabash  Railroad  Co.  v.  FoNvler,  22  Ind.  'MO. 

whether  it  crosses  a  highway,  &c.,  or  sonable.     Cleveland  Railroad   Co.   v. 

not.     Ells  V.    Pacific  Railway  Co.,  48  Brown,  45   Ind.    90.     Delay  of   four 

Mo.   231.     That  tliere  was  no  fence  days  held   unreasonable,   the  section 

must  be  proved  by  the  plaintiff;  that  boss,  whose  duty  it  wa^  to  repair,  liav- 

a   fence  would  be  improper,   by  the  ing  passed  over  the  road  twice  daily, 

defendant.      Indianapolis,     Peru,     &  and   held  also,   the  company  having 

Chicago  Railroad  Co.  r.   Lindley,  7.5  run  its  trains  on  Sund.\v.  that  it  mipht 

Ind.   42G.     To  show  that  the  defend-  repair  on  Sunday.     Toledo,  Wab.ash, 

ant  regarded  the  place  proper  for  a  &  Western  Railway  Co.  v.  Cohen,  41 

fence,  plaintiff    may   show   that   the  Ind.  444. 

company  built  one  after  the  accident.  (/)  Louisville,  New  .\lbany,  &  Chi- 

Toledo,  Wabash,  &  Western  Railway  cago  Railway  Co.  i'.  Zink,  85  Ind.  210; 

Co.  r.  Owen,  43  Ind.  405.  Grand    Rapid.s    &    In. liana    Railway 

(k)  Delay  of  a  week  held  unrea-  Co.  v.  Jones,  SI  lud.  523. 

[M95] 


624  FENCES.  [part  v. 

cover  of  a  railway  company,  unless,  by  the  exercise  of  ordinary 
care  and  prudence  at  the  time,  the  company  might  have  avoided 
inflicting  the  injury.*'  (w) 

29.  Where  the  railway  company  stipulated  with  an  adjoining 
land-owner,  to  construct  five  "  cow-pits,"  or  cattle-guards,  upon 
his  land,  but  did  it  in  so  imperfect  a  manner  as  to  be  of  no  value, 
and  the  land-owner  brought  suit  for  the  breach  of  contract,  it  was 
held  he  could  only  recover  such  damage  as  he  had  sustained  up 
to  the  time  of  bringing  the  action,  unless  where  he  had  himself 
constructed  the  cattle-guards  in  a  proper  manner,  when  he  might 
also  recover  the  expense  of  such  construction.*^ 

30.  Where  bars  are  erected  at  a  farm-crossing  at  the  request  of 
the  land-owner,  it  is  his  duty  to  keep  them  up ;  and  if  he  fails  to 
do  so,  whereby  his  own  cattle  or  those  of  third  persons  straying 
into  his  field  get  upon  the  track  and  are  injured,  the  owners  of 
such  cattle  cannot  recover  of  the  company  if  guilty  of  no  default 
at  the  time  of  the  injury .^^ 

*  31.  A  railway  running  along  the  line  of  a  highway  is  required 
to  be  fenced  with  especial  care  and  watchfulness.**  But  where 
an  animal  passes  upon  the  track  of  a  railway  at  the  crossing  of 
a  highway,  where  it  would  not  be  proper  nor  practicable  to  make 
any  effectual  fence  or  cattle-guards,  and  is  injured,  the  company 
is  not  responsible  unless  in  fault  in  the  management  of  the  train 
at  the  time.*^  And  it  was  here  considered  that  notwithstanding 
the  facts  that  the  plaintiff  was  guilty  of  negligence  in  permitting 
the  animal  to  stray  upon  the  track,  and  was  not  an  adjoining  pro- 
prietor, he  might  recover  for  an  injury  thereto  by  the  cars  of  a 

*^  Indianapolis  &  Cincinnati  Railroad  Co.  r.  Wright,  22  Ind.  376. 

<2  Indiana  Central  Railroad  Co.  v.  IMoore,  23  Ind.  14. 

*^  Indianapolis  Railroad  Co.  v.  Adkins,  23  Ind.  340.  See  also  Eames  v. 
Boston  k  Worcester  Railroad  Co.,  14  Allen,  151.  In  this  case  the  company 
erected  bars  for  the  accommodation  of  the  land-owner,  and  the  animal  killed 
escaped  upon  the  track,  by  the  bars  being  left  down,  and  afterwards  passed 
upon  the  adjoining  lot,  and  then  upon  the  railway  again,  it  not  appearing 
precisely  how.  The  court  held,  that  the  owner  could  not  recover  without 
showing  that  the  bars  were  down  without  his  fault,  or  else  that  the  animal, 
after  leaving  the  track,  came  upon  it  again  through  the  fault  of  the  company.  * 

**  Indianapolis  &  Cincinnati  Raih-oad  Co.  v.  Guard,  24  Ind.  222;  Same  v. 
]McKinney,  24  Ind.  283. 

*5  Indianapolis  &  Cincinnati  Railroad  Co.  v.  McKinney,  24  Ind.  283. 


(m)  Koutz  V.  Toledo,  Wabash,  &  Western  Railway  Co.,  54  Ind.  515. 
[*496] 


§  127.]  ODLIGATIOX   TO    MAINTAIN.  525 

railway  company  if  their  track  was  not  fenced.  But  wlierc  the 
owner  of  a  blind  horse  turned  him  out  upon  the  common  of  a 
town,  through  which  a  railway  ran,  where  he  was  killed  by  a  pass- 
ing train,  and  the  track  was  not  fenced,  it  was  held  he  could  not 
recover,  on  account  of  his  own  gross  ncirligence.''^ 

32.  In  actions  against  railway  companies,  under  the  statute,  for 
injury  to  domestic  animals,  it  should  appear  aflirmatively  that  the 
case  comes  within  the  provisions  of  the  statute.  Thus  where 
railways  are  required  to  fence  their  roads  within  six  months  after 
opening  them  for  use,  on  penalty  of  being  responsible  for  all  cattle 
injured,  it  should  appear,  in  an  action  for  injury  by  reason  of  such 
omission,  that  the  six  months  had  expired.*^  So  if  it  is  claimed 
that  the  injury  occurred  by  reason  of  the  omission  to  fence,  it 
should  appear  that  it  occurred  at  a  point  in  the  road  where  the 
company  were  not  excused  from  fencing.*^  To  constitute  a  town 
or  village  within  the  statute  it  is  not  requisite  there  should 
be  any  [dot  of  the  same,  indicating  streets,  <fcc.,  in  the  manner 
provided  by  statute.'*^ 

*  33.  An  owner  of  mules  killed  upon  the  track  of  a  railway  by  an 
engine  and  cars,  cannot  recover  therefor,  even  where  they  escaped 
from  a  properly  fenced  enclosure  without  his  knowledge,  and  were 
on  the  highway  at  its  intersection  with  the  railway .^^ 

34.  There  seems  to  be  some  conflict  in  the  decisions  in  regard 
to  the  kind  of  fence  the  railways  are  required  to  nuiintain.  Tho 
natural  conclusion  upon  this  point  would  be  that  it  should  be  such 
fence  as  the  statute  makes  legal  fence  in  other  cases ;  and  some 
of  the  courts  adopt  this  rule.^  But  in  others  it  seems  to  have 
been  held  this  is  not  indispensable.''^  (?i) 

*'  Knight  V.  Toledo  &  Wabash  Railroad  Co.,  24  Ind.  402.  A  railway  com- 
pany is  not  bound  to  resort  to  any  extraordinary  means  to  insure  the  fenco 
being  kept  up  along  its  line  night  and  day.  Reasonable  diligence  is  all  that 
is  required.  Illinois  Central  Kailroad  Co.  i'.  Diekerson,  27  111.  5.');  Same  r. 
i'helps,  29  111.  447;  Same  v.  Swearingen,  33  111.  289. 

*^  Ohio  &  Mississippi  Railroad  Co.  r.  Meisenhiemer,  27  III.  30;  Same  i'. 
Jones,  27  111.  41. 

"  Illinois  Central  Railroad  Co.  v.  Williams,  27  111.  48. 

*^  North  Pennsylvania  Railroad  Co.  v.  Relunan,  49  Penn.  St.  101. 

60  Enright  v.  San  Francisco  &  San  Juan  Railroad  Co.,  33  Cal.  230. 

"  Eames  v.  Salem  &  Lowell  Railroad  Co.,  98  Mass.  5G0;  Chicago  &  Alton 

(n)  In  Michigan  this  matter  is  be  approved  by  the  railroad  commis- 
provided  for  by  statute.     They  are  to    sioners.     Davidson  v.  Michigan  Cen- 

[•497] 


626 


FENCES. 


[part  v. 


SECTION    11. 


Cattle  against  which  the  Company  is  hound  to  fence. 


1.  Owner  bound  to   restrain   cattle   at 

common  law. 

2.  If  bound   to   fence    along   adjoining 

land,  onl}'  against  cattle  rightfully 
on  such  land. 

.3.  Agreement  that  land-owner  sliall 
fence,  will  excuse  injury  to  cattle. 

4,  5.  Owner  of  cattle  injured  by  negli- 
gence of  company  may  recover, 
unless  guilty  of  express  neglect. 

6,  7.  Duty  of  company  to  fence  against 
cattle  straying  on  adjoining  land. 


8.  Company  not  bound,  to  fence,  liable 

only  for  injuries  caused  by  wanton 
or  reckless  conduct. 

9.  Grantee  of  land  bound  by  grantor's 

covenaVits  as  to  fencing. 

10.  Cattle  accidentally   at  large.     Duty 

of  company. 

11.  Distinction  between  suffering  cattle 

to  go  at  large  and  accidental   es- 
cape. 


§  128.  1.  At  common  law  the  proprietor  of  land  was  not 
obliged  to  fence  it.  Every  man  was  hound  to  keep  his  cattle 
upon  his  own  premises,  and  he  might  do  this  in  any  manner  he 
cliose.i 

Railroad  Co.  v.  Utley,  38  111.  410.  The  statute  requiring  railways  to  be  fenced 
is  peremptory,  and  the  exercise  of  ordinary  care  in  maintaining  fences  will 
not  excuse  any  defects  found  in  the  fence.  Antisdel  v.  Chicago  &  Northwest- 
ern Railway  Co.,  26  Wis.  145. 

1  Dovaston  v.  Payne,  2  H.  Bl.  527;  Rust  v.  Low,  6  Mass.  90,  99;  Jackson 
V.  Rutland  &  Burlington  Railroad  Co.,  25  Vt.  157,  158;  s.  c  1  Redf.  Am. 
Railw.  Cas.  362;  Wells  v.  Howell,  19  Johns.  385;  Manchester,  Sheffield,  & 
Lincolnshire  Railway  Co.  v.  Wallis,  14  C.  B.  213;  s.  c.  25  Eng.  L.  &  Eq.  373; 
Morse  v.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  49;  Lafayette  &  Indian- 
apolis Railroad  Co.  v.  Shriner,  6  Ind.  141;  Woolson  v.  Northern  Railroad  Co., 
19  N.  H.  267;  Indianapolis  &  Cincinnati  Railroad  Co.  v.  Kinney,  8  Ind.  402. 
But  in  Pennsj'lvania  the  common-law  rule  in  regard  to  keeping  one's  cattle  at 
home  is  reversed  by  statute,  and  improved  lands  must  be  fenced  in  order  that 
the  owner  may  recover  for  damages  done  by  stray  cattle.  Gregg  v.  Gregg,  2.') 
Leg.  Int.  372. 


tral  Railroad  Co.,  49  Mich.  428.  A 
bluff,  ledge,  or  ditch,  effectual  as  a 
barrier,  may  be  regarded  as  a  lawful 
fence.  Hilliard  v.  Chicago  &  North- 
western Railway  Co.,  37  Iowa,  442. 
In  Shellabarger  v.  Chicago,  Rock  Is- 
land, &  Pacific  Railway  Co.,  19  Am.  & 
[M97] 


Eng.  Railw.  Cas.  527,  it  is  held  that 
any  fence  sufficient  to  keep  cattle  off 
the  track  is  sufficient.  The  company 
is  not  bound  to  keep  a  fence  that  will 
stop  unruly  animals.  Smead  ;;.  Lake 
Shore  &  Michigan  Southern  Railroad 
Co.,  23  Am.  &  Eng.  Railw.  Cas.  241. 


§  128.]  CATTLE    AGAINST    WHICH    BOUND   TO    FKNCE.  527 

2.  And  wlicrc,  hv  prescription  or  contract,  or  by  statute,  a  land 
proprietor  is  bound  to  fence  his  land  from  that  of  the  adjoining 
proprietor,  it  is  only  as  to  cattle  riji^htfully  in  such  adjoininj; 
land.2  The  same  rule  has  been  extended  to  railways.'"' (a)  And 
it  has  been  considered  in  some  cases  that  where  no  statute,  in 
terms,  imposes  npon  railways  the  duty  of  fencing  their  roads,  that 
they  are  not  bound  to  fence,  and  that  the  owner  of  cattle  is 
*  bound  to  keep  them  off  the  road,  or  liable  to  respond  in 
damages  for  any  injury  which  may  be  caused  by  their  straying 
upon  the  railway,*  and  as  a  necessary  consequence  cannot  recover 
for  any  damage  which  may  befall  them.^ 

2  Cases  supra,  note  1;  Lord  v.  Wormwood,  29  Me.  282;  Berais  r.  Con- 
necticut &  Passiimpsic  Rivers  Kaihoad  Co.,  42  Vt.  375. 

8  Ricketts  r.  East  &  West  India  Docks  &  Birmingham  Junction  Railway 
Co.,  12  C.  B.  161;  s.  c  12  Eng.  L.  &  Eq.  520;  Dawson  v.  Midland  Railway 
Co.  21  W.  R.  50;  Perkins  v.  Eastern  Railroad  Co.,  29  Me.  307;  Towns  r. 
Cheshire  Railroad  Co.,  1  Fost.  N.  II.  303;  Cornwall  v.  Sullivan  Railroad  Co., 
8Fost.  N.  II.  KJl. 

*  Vandegrift  v.  Rcdiker,  2  Zab.  185;  Tonawanda  Railroad  Co.  r.  Munger, 
5  Denio,  255;  s.  c.  4  N.  Y.  319;  Clark  v.  Syracuse  &  Utica  Railroad  Co.,  II 
Barb.  112;  Williams  v.  Michigan  Central  Railroad  Co.,  2  iSIich.  259;  New 
York  &  I'^rie  Railway  Co.  v.  Skinner,  19  Penn.  St.  298;  Mayberry  v.  Concord 
Railroad  Co.,  47  N.  H.  391. 

''  Brooks  V.  New  York  &  Erie  Railroad  Co.,  13  Barb.  591.  lu  this  case  it 
was  held  that  the  statute  requiring  railways  to  maintain  cattle-guards  at  road- 
crossiiigs  did  not  extend  to  farm-crossings.  So  too  it  has  been  held  that  the 
statute  requiring  gates  or  cattle-guards  at  road-crossings  does  not  extend  to 
street-crossings.  Vanderkar  v.  Rensselaer  &  Saratoga  Railroad  Co.,  13  Barb. 
390.  In  Central  Military  Tract  Railroad  Co.  v.  Rockafellow,  17  111.  541,  the 
rule  is  laid  down  in  regard  to  cattle  straying  upon  a  railway,  that  they  are  to 
be  regarded  as  wrongfully  on  the  road,  and  that  the  owner  cannot  recover 
for  an  injury,  unless  caused  by  wilful  misconduct  or  gross  negligence.  And 
Illinois  Central  Railroad  Co.  v.  Reedy,  17  111.  580,  is  to  the  same  effect.  In 
Munger  v.  Tonawanda  Railroad  Co.,  4  N.  Y.  349,  it  is  held,  that  cattle  escap- 
ing from  the  enclosure  of  the  owner  and  straying  upon  the  track  of  a  railway, 
are  to  be  regarded  as  trespassers,  and  no  action  can  be  maintained  against  the 
company  if  the  negligence  of  the  plaintiff  concurred  with  that  of  the  company 

'(a)  But  contra,  Gillam  v.  Sioux  pany  is  bound  to  fence  against  cattle 
City  &  St.  Paul  Railroad  Co.,  2G  Minn,  in  the  highway  as  much  as  against 
268.  And  companies  are  liable  to  cattle  in  the  fields.  EvansvilleSc  Craw- 
occupants  as  well  as  owners.  Veer-  fordsvillo  Railroad  Co.  v.  Barber,  71 
hausen  v.  Chicago  &  Northwestern  Ind.  109. 
Railway  Co.,  53  Wis.  689.    The  com- 

[•498] 


528  FENCES.  [part  v. 

3.  But  where  a  railway  is  not  obliged  to  fence  unless  requested 
*  by  the  land-owner,  and  bad  agreed  with  sucli  owner  that  they 
should  not  fence  against  his  land,  and  a  cow  placed  in  such  lands 
strayed  upon  the  track  of  the  road,  and  was  killed  by  a  train,  it 
was  held  the  owner  of  the  cow,  having  by  his  own  fault  contrib- 
uted to  the  loss,  could  not  recover  of  the  company.^  {by 

4.  In  a  case  in  Connecticut,'''  it  was  decided  that  Where  cattle 

in  producing  an  injury  to  tlie  cattle  while  in  that  situation ;  and  that  the  law 
charges  the  owner  of  cattle,  in  such  case,  with  negligence,  although  his  enclos- 
ures are  kept  well  fenced,  and  he  is  guilty  of  no  actual  negligence,  in  suffering 
the  cattle  to  escape.  And  it  was  accordingly  held,  that  the  company  was  not 
liable,  under  such  circumstances,  for  negligently  running  an  engine  upon  and 
killing  the  plaintiff's  cattle.  The  same  principles  substantially  are  maintained 
in  the  same  case.  5  Denio,  255.  And  it  is  further  held  there,  that  where  the 
general  statutes  of  the  state  allow  towns  to  prescribe  what  shall  be  a  legal 
fence,  and  when  cattle  may  run  at  large  in  the  highway,  and  forbid  a  recovery 
for  a  trespass  by  cattle  lawfully  in  the  highway,  by  one  whose  fences  do  not 
conform  to  the  town  ordinance  on  the  subject,  this  will  have  no  application  to 
railways,  and  that  cattle  by  such  ordinance  allowed  to  run  in  tlie  highway,  and 
which,  while  so  running,  enter  on  the  lands  of  a  railway  at  a  road-crossing, 
where  there  is  no  obstruction  against  the  intrusion  of  cattle,  are  to  be  regarded 
as  trespassers. 

•^  Tower  v.  Providence  &  Worcester  Railroad  Co.,  2  R.  I.  404.  See  also 
Illinois  Central  Railroad  Co.  v.  Wlialen,  42  111.  396.  But  in  cases  where  the 
railway  contracts  to  build  the  fences,  the  owner  of  the  remaining  land  cannot 
justify  turning  in  his  cattle  until  they  are  built,  and  if  he  do,  he  cannot  re- 
cover for  any  injury  they  may  sustain.  He  should  first  build  the  fence  and 
recover  the  expense  of  the  company.  Drake  v.  Philadelphia  &  Erie  Railroad 
Co.,  51  Penn.  St.  240.  But  some  of  the  cases  seem  to  take  a  different  view 
of  the  right  of  the  land-owner  to  turn  in  his  cattle.  Fernow  v.  Dubuque  & 
Southwestern  Railroad  Co.,  22  Iowa,  528. 

'  Isbell  V.  Kew  York  &  New  Haven  Railroad  Co.,  27  Conn.  393;  s.  c.  2 
Redf.  Am.  Railw.  Cas.  474.     The  courts  in  Indiana,  in  hearing  cases  in  error, 

(h)  And  where  the  owner  agi-ees  tent  or  gross  carelessness  of  the  defend- 
to  keep  the  fence,  and  his  cattle  stray  ants'  servants.  Pittsburg,  Cincinnati, 
upon  the  track  by  reason  of  his  neglect  &  St.  Louis  Railway  Co.  v.  Smith,  20 
to  do  so  and  are  injured,  he  cannot  re-  Ohio  St.  124.  But  where  it  is  the  duty 
cover.  Whittier'  v.  Chicago,  Milwau-  of  the  company  to  fence,  the  mere  fact 
kee,  &  St.  Paul  Railway  Co.,  24  Minn,  that  the  owner  has  erected  a  fence  will 
394;  Railway  Co.  v.  Ileiskell,  38  Ohio  not  relieve  the  company.  Louisville, 
St.  GGG;  Warren  v.  Keokuk  &  Des  New  Albany,  &  Chicago  Railway  Co. 
Moines  Railroad  Co.,  41  Iowa,  484.  v.  White,  20  Am.  &  Eng.  Railw.  Cas. 
And  this  though  the  insuflBciency  is  449. 
caused  by  casualtv,  not  the  result  of  in- 

[*499] 


§  128.]  CATTLE   AGAINST    WHICH    BOUND   TO    FENCE.  529 

arc  at  large  without  tlio  fault  of  the  owner,  and  go  upon  the  track 
of  a  railway,  and  arc  injured  through  the  negligence  of  the  com- 
pany in  the  management  of  their  train,  the  owner  i.s  not  precluded 
from  recovering  damages,  because  the  cattle  were  trespassers 
upon  the  railway.  In  order  to  preclude  the  plaintiff  from  re- 
covery in  such  case,  he  must  have  been  guilty  of  exi)ress  and  not 
merely  of  constructive,  wrong  in  suffering  the  cattle  to  go  at 
large,  (e) 

5.  We  could  not  dissent  from  the  propositions  maintained  in 
the  preceding  case,  notwithstanding  some  hesitation  in  regard  to 
the  proper  construction  placed  by  the  court  upon  the  facts  found 
in  the  case.  The  law  of  every  case  must  be  judged  of  by  the 
facts  which  the  court  assume  to  be  established  in  deciding  it.     It 

feel  bound  to  presume  that  the  court  below  applied  the  testimony  correctly  in 
determining  localities  and  geographical  boundaries,  and  especially  in  matters 
affecting  jurisdiction,  as  the  local  courts  would  more  naturally  understand 
these  questions  than  another  less  familiar  with  the  facts.  Indianapolis  & 
Cincinnati  Railroad  Co.  i\  Moore,  16  Ind.  4.S;  Same  r.  Snelling,  16  Ind.  435. 
By  the  law  of  Indiana,  before  the  statute  of  1859,  it  must  appear,  in  order 
to  recover  damages  for  animals  killed  or  injured  by  a  railway  company, 
that  it  occurred  through  the  negligence  of  the  company,  and  without  the 
immediate  fault  of  the  owner.  ^Vright  v.  Indianapolis  &  Cincinnati  Rail- 
road Co.,  18  Ind.  168;  Toledo  &  Wabash  Railroad  Co.  v.  Thomas,  18  Ind. 
215.  The  act  of  1859  is  prospective  only.  Indianapolis  &  Cincinnati  Rail- 
road Co.  V.  Elliott,  20  Ind.  430.  It  was  here  made  a  question  whether  a 
statute  awarding  damages  to  the  owners  of  animals  killed  or  injured  by  the 
I'oUing  stock  of  any  railway,  applied  equally  to  freight  as  to  passenger  trains, 
and  it  was  held  that  it  did.  The  wonder  is  that  any  such  question  should 
ever  be  made. 

(c)  When  cattle  are  injured  through  a  boy  to  whom  thoy  have  been  en- 
neglect  of  the  company  to  fence  its  trusted,  in  leaving  them  for  a  short 
road,  the  mere  fact  that  the  cattle  time  so  that  they  stray  on  the  track, 
were  running  at  large  in  violation  of  Brady  v.  Rensselaer  &  Saratoga  Rail- 
statute  will  not  defeat  a  recovery,  road  Co.,  1  Ilun.  .378.  Nor  will  it 
Cairo  &  St.  Louis  Railroad  Co.  v.  make  any  difference  that  the  animal 
^Murray,  82  111.76;  Rhodes  i'.  Utica,  was  unruly.  Congdon  r.  Central  Ver- 
Ithaca,  &  Elmira  Railroad  Co.,  5  Hun,  mont  Railroad  Co.,  50  Vt.  690.  Nor 
344.  Nor  will  the  fact  that  they  es-  that  it  is  what  is  called  "crazy,"  i.  e.. 
caped  from  an  enclosure  without  fault  Licking  in  that  sense  which  ordinarily 
of  the  owner.  Toledo,  Peoria,  &  keeps  an  animal  out  of  danger.  Lis- 
Warsaw  Railway  Co.  i'.  Delehanty,  71  ton  v.  Central  Iowa  Railroad  Co.,  26 
111.  615.  Nor  will  the  negligence  of  Am.  &  Eng.  Railw.  Cas  593. 
VOL.  I.— 34  [MOO] 


530  FENCES.  [part  V. 

would  be  as  unfair  to  criticise  the  decision  of  a  court,  upon  a  new 
construction  of  the  facts,  as  it  would  upon  a  different  state  of  the 
testimony  at  a  different  trial.  The  decision  of  a  court  is  good  or 
bad  upon  the  facts  assumed  by  the  judge,  and  no  fair-minded  man 
will  attempt  to  escape  from  the  weight  of  an  authority  by  assum- 
ing or  *  even  proving,  that  the  judge  took  a  mistaken  view  of  the 
facts.  It  is  merely  an  attempt  to  balance  one  assumed  blunder 
of  the  court,  by  showing  that  they  fell  into  another  in  an  opposite 
direction.  A  decision  is  good  upon  the  ground  upon  which  it  is 
placed,  or  it  is  wrong  upon  every  ground. 

6.  We  have  said  thus  much  in  order  to  state  that  the  case  of 
Browne  v.  Providence,  Hartford,  and  Fishkill  Eailway  Company,^ 
which  decides  that  a  railway  corporation,  which  is  obliged  by  law 
to  make  all  needful  fences  and  cattle-guards  upon  the  sides  of  its 
track,  is  liable  for  injuries  by  its  engines  to  cattle  straying  at 
large  through  the  land  of  a  stranger  upon  its  road,  by  reason  of 
its  negligence  in  not  erecting  fences  and  cattle-guards  as  required 
by  statute,  seems  clearly  to  have  assumed  a  different  rule  of  re- 
sponsibility, as  against  railway  companies,  from  that  which  has 
ordinarily  been  before  applied  to  all  lawful  business,  as  between 
adjoining  proprietors.  Indeed  the  court  distinctly  assume  the 
position,  that  the  common-law  responsibility  imposed  upon  adjoin- 
ing land-owners  is  not  sufficient,  and  that  railway  companies 
must  be  held  to  a  higher  degree  of  responsibility,  "  on  account  of 
the  new  circumstances  and  condition  of  things  arising  out  of  the 
general  introduction  and  use  of  railways  in  the  country,"  and  that 
the  requirements  of  the  railway  companies  in  regard  to  fencing 
and  cattle-guards  "  were  designed  for  the  safety  of  the  public,  and 
for  the  protection  of  all  domestic  animals,  whether  rightfully  or 
wrongfully  out  of  their  owners'  enclosure." 

7.  This  decision  certainly  has  the  credit  of  meeting  the  question 
involved  fairly  and  of  wrestling  manfully  with  its  difficulties,  and 
of  placing  it  upon  the  only  plausible  ground,  that  the  business  was 
so  dangerous  to  the  public  that  it  merited  a  more  extended  con- 
struction, where  railways  are  required  to  fence  their  roads,  than 
where  other  land-owners  were  required  to  do  the  same  thing.  We 
had  always  supposed  that  railways  were  required  to  fence  their 
roads  for  the  protection  of  their  passengers,  and  of  persons  and 
animals  rightfully  in  the  highway  or  the  adjoining  lands.     And 

8  12  Gray,  55;  supra,  §  127,  pi.  21,  and  notes. 
[*500] 


§  128.]  CATTLE    AGAINST    WHICH    BOUND    TO    FENCE,  531 

we  have  yet  to  learn  any  sound  principle  upon  which  they  can 
fairly  be  required  to  guard  against  injuries  to  persons  or  animals 
wrongfully  upon  their  track,  by  making  permanent  erections  to 
preclude  such  persons  or  animals  from  coming  there.  It  is  true, 
unquestionably,  that  railway  companies,  in  common  with  all 
others,  arc  *  bound  to  avoid  doing  an  injury  to  any  one,  if  it  can 
be  avoided  at  the  time,  whether  such  person  or  his  property  be 
rightfully  or  wrongfully  in  their  way  ;  but  that  this  duty  extends 
to  previous  precautions  against  doing  injuries  to  persons  wrong- 
fully upon  their  track,  either  personally  or  by  their  property,  is 
more  than  can  fairly  be  maintained,  as  it  seems  to  us,  unless 
railways  are  to  be  outlawed  in  this  respect.  Every  one  in  tiie 
exercise  of  a  lawful  business  has  the  right  to  expect  and  to  con- 
duct his  business  upon  the  expectation  that  others  will  also  per- 
form their  duty,  and  if  they  do  not,  that  they  will  be  required  by 
the  administrators  of  the  law  to  take  the  natural  consequences  of 
such  neglect,  provided  that  even  when  in  fault,  in  exposing  them- 
selves or  their  property  to  damage  and  loss,  from  the  lawful  {lur- 
Buit  of  lawful  business  by  others,  they  be  not  wantonly  damaged 
by  such  others,  but  only  from  necessity.  And  this  is  all  which 
we  understand  to  have  been  decided  by  the  case  of  Isbcll  v.  New 
York  and  New  Ilaven  Railway  Company.^  And  in  the  later  case 
in  Massachusetts,^  Chapman,  J.,  seems  to  assume  the  same  ground, 
and  it  is  the  only  one  in  our  judgment  fairly  maintainable. 

8.  A  railway  company  which  is  not  bound  to  fence  its  track  is 
not  liable  for  injuries  inflicted  by  its  engines  and  trains  upon  cat- 
tle straying  upon  the  track  of  the  road,  unless  such  injury  was 
caused  by  the  wanton  and  reckless  negligence  of  the  cnmjiany 
through  its  agents  and  servants.^*^ 

9.  It  was  held  in  Ohio,  ^Mvhere  a  land-owner  granted  to  the 
company  the  right  of  way  of  a  given  width,  and  covenanted  to 
maintain  the  fences  on  both  sides,  and  su])sequently  conveyeil  the 
Jand,that  the  grantee  of  the  land  was  so  far  affected  by  his  grant- 
or's covenant  to  maintain  the  fences  on  the  line  of  the  railway 
that   he  could   not  visit   any  consequences   upon   the   company 


"  Rogers  v.  Newburyport  Railroad  Co ,  1  Allen,  IG. 
10  Louisville  &  Frankfort  Railroad  Co.  v.  liallard,  'J  Met.  Ky.  177. 
"  Easter  V.  Little  Miami  Railroad  Co.,  H  Ohio  St.  4S.     See  also  McCool 
V.  Galena  &  Chicago  Union  Railroad  Co.,  17  Iowa,  401. 

[•501] 


532  FENCES.  [part  v. 

resulting  from  its  not   being   performed,  but   must  bear    them 
liimself.(c?) 

10.  Where  the  owner  of  cattle  was  not  in  the  habit  of  suffering 
his  cattle  to  go  at  large  on  the  railway  track,  and  was  not  in  a 
position  to  take  any  steps  to  avert  the  danger  they  might  be  in 
from  the  passing  trains  of  the  company,  the  presence  of  the  cat- 
tle *  upon  the  track  will  be  regarded  as  accidental,  and  at  most 
they  will  be  deemed  but  as  trespassers,  and  be  presumed  to  have 
escaped  through  the  insufficiency  of  fences,  and  the  owner  liable 
for  any  damage  they  might  cause.  But  if  the  servants  of  the  com- 
pany used  no  means  to  avoid  killing  the  cattle,  and  manifested 
such  indifference  to  consequences,  such  a  degree  of  rashness  and 
wantonness  as  evinced  a  total  disregard  for  the  safety  of  the  cat- 
tle, and  a  willingness  to  destroy  them,  although  the  destruction 
may  not  have  been  intentional,  in  justice  and  upon  principle  the 
company  should  be  held  responsible  for  the  damages,  unless  it 
appear  that  the  owner  was  equally  in  fault.  The  simple  killing 
of  an  animal  by  a  railway  company's  train  is  prima  facie  evidence 
of  negligence  on  the  part  of  their  engineer.^^ 

11.  In  one  case  ^^  it  was  held  that  the  negligence  on  the  part  of 
the  owner  of  cattle,  which  shall  preclude  his  recovery  for  an  injury 

12  Indianapolis  &  Cincinnati  Railroad  Co.  v.  Meek,  10  Ind.  502. 

"  Northwestern  Railroad  Co.  v.  Goss,  17  Wis.  428.  All  questions  of  negli- 
gence, where  there  is  any  uncertainty  in  the  facts,  must  be  submitted  to  the 
jury  under  proper  instructions.  Congor  v.  Galena  &  Chicago  Union  Railroad 
Co.,  17  Wis.  477.  This  question  has  been  discussed  in  Briggs  v.  Taylor, 
28  Vt.  180,  184;  s.  c.  2  Redf.  Am.  Railw.  Cas.  558. 

(d)  But  contra,  Cincinnati,  Hamil-  fence.     It  has  been  held  also  that  the 

ton,   &  Indianapolis  Railroad  Co.  v.  company  may  be  liable  to  the  tenant 

Ridge,    54  Ind.    39.     And  see  Corry  of  the  owner.     Thomas  i".  Hannibal  & 

V.  Great  Western  Railway  Co.,  Law  St.  Joseph  Railroad  Co.,  82  Mo.  538. 

Rep.  7  Q.  B.  322.     See  also  Berry  v  But  in  St.  Louis,  Vandalia,  &  Terre 

St.  Louis,  Salem,  &  Little  Rock  Rail-  Haute  Railroad   Co.    v.   Washburne, 

road  Co.,  65  Mo.  172;  and  Harrington  97  111.  253,  it  was  held  that  the  tenant 

V.    Chicago,    Rock    Island,    &    Pacific  of  one  who   has  agi-eed   to   keep  the 

Raih-oad  Co.,  71  Mo.  384,   where  it  fence  in  repair,  knowing  of  the  agree- 

is  held  that  if  it  is  agreed  to  omit  a  ment  and  of  the  condition  of  the  fence, 

fence  through  a  cultivated  field,  the  cannot  recover  on  the  ground  of  in- 

corapany  will  be  liable  to  a  stranger  sufficiency  of    the   fence.      And  see 

for  cattle  killed  through  getting  into  Warren  v.  Keokuk  &  Des  Moines  Rail- 

the  field  and  thence  on  the  track,  un-  road   Co.,   41  Iowa,   484.      See   also 

less  the  field  is  enclosed  with  a  lawful  supra,  note  (b). 
[*5021 


§  128.]  CATTLE   AGAINST   WIIICU    BOUND   TO    FENCE.  533 

to  them  by  a  railway  train,  must  depend  more  upon  its  dcfrrce 
than  upon  the  time  when  it  occurs ;  and  a  distinction  in  this 
respect  should  be  made,  between  one  who  suffers  his  cattle  know- 
ingly to  go  at  large  where  they  will  naturally  be  exposed  to  pass- 
ing trains  upon  a  railway,  and  cases  where  the  cattle  get  at  largo 
without  the  owner's  knowledge,  through  defect  of  fences  or  their 
being  temporarily  thrown  down. 

[*o02] 


PART   YI. 

THE  LAW   OF  AGENCY  AS  APPLIED   TO 
RAILWAYS. 


PART  YI. 

THE    LAW    OF    AGENCY    AS    APPLIED    TO 
RAILWAYS. 


♦CHAPTER    XX. 


LIABILITIES   IN    REGARD    TO    CONTRACTORS,   AGENTS,   AND    SUB-AGENTS. 


SECTION   I. 


Liability  for  Acts  and  Omissions  of  Contractors  and  their  Agents. 


1.  Company  ordinarily  not  liable  for  an 

act  of  the  contractor  or  his  servant. 

2.  Otherwise  in  England  if  the  contractor 

is  employed  to  do  the  very  act. 

3.  American    courts    seem    disposed  to 

adopt  the  same  rule. 

4.  Distinction  between  cases  of  acts  done 

on  movable  and  cases  of  acts  done 
on  immovable  property  not  main- 
tainable. 
6.  True  grounds   of   distinction ;    what 
they  are. 

6.  Mode  of  employment,  wliether  by  day 

or  job,  no  proper  ground  of  distinc- 
tion. 

7.  Proper  basis  of  company's  liability. 

Question  of  control. 


8.  Thus,  in  general,  so  long  as  one  re- 

tains control,  he  is  responsible. 
n.  (b.)   Contractor  in  control,  huwever, 
not  liable  for  result  of  defects  in 
machinery  furnished  by  company. 

9.  Master  w  orkman  responsible  only  for 

the  faitlifulness  and  care  of  his 
workmen,  in  the  business  of  their 
employment. 

10.  Company   responsible    for    injuries 

consequent  upon  defects  of  con- 
struction, in  the  course  of  the  work 
b}'  a  contractor. 

11.  Ordinarily  employer  not  responsible 

for  the  negligent  mode  in  which 
work  is  done,  tiio  contractor  being 
employed  to  do  it  in  a  lawful  and 
reasonable  manner. 


§129.1.  The  general  doctrine  seems  now  firmly  established, 
that  the  company  is  not  liable  for  the  act  of  tlic  contractor's  ser- 
vant, where  the  contractor  has  an  independent  control,  althonjrh 
subordinate,  in  some  sense,  to  the  general  design  of  the  work. 
The  distinction,  although  but  imperfectly  defined  for  a  long  time, 
has  finally  assumed  definite  form,  —  that  one  is  liable  for  the  act 

[•503] 


538  LIABILITY   FOR   CONTRACTORS,   AGENTS,  ETC.       [PART   VI. 

of  his  servant,  but  not  for  that  of  a  contractor,  or  of  the  servant 
of  a  contractor.^ 

*  2.  But  if  the  contractor  or  his  servants  do  an  act  which  turns 
out  to  be  illegal,  or  a  violation  of  the  rights  of  others,  and  it  be 
the  very  act  which  he  was  employed  to  do,  the  employer  is  liable 
to  an  action.2  Lord  Campbell,  C.  J.,  here  said,  "  The  position 
in  effect  contended  for  by  defendants'  counsel,  I  think  wholly 
untenable,  namely,  that  where  there  is  a  contractor,  the  employer 
can  in  no  case  be  made  liable.  It  seems  to  me,  that  if  the  con- 
tractor do  that  which  he  is  ordered  to  do,  it  is  the  act  of  the  em- 
ployer, and  this  appears  to  have  been  so  considered  in  the  cases." 
"  In  these  cases  nothing  was  ordered,  except  that  which  the  party 
giving  the  order  had  a  right  to  order,  and  the  contract  was  to  do 
that  which  was  legal,  and  the  employer  was  held  properly  not 
liable  for  what  the  contractor  did  negligently,  the  relation  of.  mas- 
ter and  servant  not  existing.  But  here  the  defendants  emj)loy  a 
contractor  to  do  that  which  was  unlawful.  Upon  the  principle 
contended  for,  a  man  might  protect  himself  in  the  case  of  a 
menial  servant,  by  entering  into  a  contract." 

*  Laugher  v.  Pointer,  5  B.  &  C.  547,  where  the  subject  is  discussed,  but 
not  decided,  the  court  being  equally  divided.  Quarman  v.  Burnett,  6  M.  & 
W.  499;  Milligan  v.  Wedge,  12  A.  &  E.  737;  Knight  v.  Fox,  5  Exch.  721; 
Burgess  V.  Gray,  1  C.  B.  578;  Overton  v.  Ereeman,  11  C.  B.  867;  s.  c.  8  Eng. 
L.  &  Eq.  479;  Peachey  v.  Rowland,  13  C.  B.  182;  s.  c.  16  Eng.  L.  &  Eq.  442; 
Rapson  v.  Cubitt,  9  M.  &  W.  710;  Reedie  v.  London  &  Northwestern  Railway 
Co.,  6  Railw.  Cas.  184;  Hobbitt  v.  Same,  6  Railw.  Cas.  188;  s.  c.  4  Exch. 
244;  Steel  v.  Southeastern  Railway  Co.,  16  C.  B.  550;  s.  c.  32  Eng.  L.  &  Eq. 
366.  In  this  last  case,  the  action  against  the  company  was  for  flowing  plain- 
tiff's land,  through  a  defect  in  certain  masonry  made  by  the  workmen  of  a 
contractor  with  the  company,  under  the  superintendence  of  the  company's 
surveyor  who  furnished  the  plans.  It  appeared  that  the  injury  resulted  from 
the  neglect  of  the  workmen  to  follow  the  directions.  The  court  held  very 
properly  that  the  action  could  not  be  maintained.  See  also  Young  v.  New 
York  Central  Railroad  Co.,  30  Barb.  229.  But  if  a  servant  of  the  contractor, 
while  employed  on  the  work,  receive  an  injury  from  a  passing  train  of  the 
company  through  the  fault  of  the  company's  servants,  and  without  his  owil 
fault,  he  may  maintain  an  action  against  the  company.  lb.  See  also  Cincin- 
nati V.  Stone,  5  Ohio  St.  38.  The  master  is  not  responsible  for  the  act  of  his 
servant,  who  is  loaned  to  and  is  under  the  direction  and  control  and  in  the 
employ,  for  the  time  being,  of  another.  Murray  v.  Currie,  Law  Rep.  6 
C.  P.  24. 

2  Ellis  V.  Sheffield  Gas  Consumers'  Co.,  2  Ellis  &  B.  767;  s.  c.  22  Eng.  L. 
&  Eq.  198. 
[*504] 


§  129.]        LIABILITY   FOR   CONTRACTORS   AND   THEIR   AGENTS.  539 

3.  The  American  cases  liave  not  as  yet,  perhaps,  assumed  that 
definite  and  uniform  line  of  decision  which  seems  to  obtain  in  the 
English  courts  upon  the  subject.  But  there  is  a  marked  disposi- 
tion manifested  of  late  to  adopt  substantially  the  same  view.^  (a) 
But  some  of  the  earlier  cases  in  this  country  and  in  England 
hold  the  employer  responsible  for  all  the  acts  and  omissions  of  a 
contractor,  the  same  as  for  those  of  a  servant.* 

*4.  At  one  time  a  distinction  was  attempted  to  be  main- 
tained, between  the  liability  of  the  owner  of  fixed  and  permanent 
property  and  the  owner  of  movable  chattels,  for  woi'k  done 
in  regard  to  them  or  with  them,  making  the  employer  liable 
in  the  former  and  not  in  the  latter  case.^    But  the  distinction 

8  Kelly  V.  New  York,  11  N.  Y.  432;  Blake  v.  Ferris,  1  Seld.  48;  Pack  c. 
New  York,  4  Seld.  222;  Hutchinson  v.  York  &  Newcastle  Railway  Co.,  5 
Exch.  343;  s.  c.  6  Railw.  Cas.  580,  589. 

*  Bush  V.  Steinman,  1  B.  &  P.  404;  Lowell  v.  Boston  &  Lowell  Ilailroad 
Co.,  23  Pick.  24.  See  also,  on  this  point.  New  York  v.  Bailey,  2  Denio,  433; 
Elder  v.  Bemis,  2  Met.  599;  Earle  v.  Ilall,  2  Met.  353.  In  the  latter  case  the 
subject  is  very  ably  discussed,  and  the  early  cases  somewhat  qualitied.  And 
in  the  case  of  Ililliard  v.  Richardson,  3  Gray,  349,  there  is  a  very  elaborate 
and  satisfactory  opinion,  by  Mr.  Justice  Thomas,  in  which  the  cases  are  re- 
viewed, and  the  old  rule  of  Bush  r.  Steinman  distinctly  repudiated. 

*  Rich  V.  Basterfield,  4  C.  B.  783;  King  w.  Pedley,  1  A.  &  E.  822.  And 
see  Fish  v.  Dodge,  4  Denio,  311.  Littledale,  J.,  in  Laugher  v.  Pointer,  5 
B.  &  C.  547.  Parke,  B.,  in  Quarman  v.  Burnett,  6  M.  &  W.  510;  RandlesoD 
V.  Murray,  8  A.  &  E.  109. 

(a)  McMasters     v.     Pennsylvania  Roekford,  Rock  Island,   &  St.  Louis 

Railroad  Co.,  3  Pittsb.  1;  McCafferty  Kailroad   Co.    v.   Wills,  CG   111.   321, 

V.  Spuyten  Duyvil  &  Port  Morris  Rail-  where   it   is   held   that  the  company 

road  Co.,  48  IIow.  Pr.  44;  Ilofnagle  may  be  liable  for  trespasses  by  con- 

V.  New  York  Central  &  Hudson  River  tractor's  servants.     And  see  Tllman  r. 

Railroad   Co.,  55  N.   Y.  608;    Cun-  Hannibal  &  St.  Joseph  Railroad  Co., 

ningham    v.    International    Railroad  G7  Mo.  118,  where  it  is  held  that  the 

Co.,    51    Tex.    503;    Kansas    Central  company   is   jointly   liable    with    the 

Railway  Co.  y.  Fitzsimmons,  18  Kan.  contractor  and  his  servants  for  tres- 

34.      And   see    s.   c.    22    Kan.    G86.  pass  in  an  entry  made  by  its  orders 

A  company  was  held  not  liable  to  a  in  prosecution  of  construction.     Anil 

servant  of  the  contractor  injured  by  see  Bechnel  r.  New  Orleans  Railroad 

poisonous  exhalations  from  a  mixture  Co.,  28  La.  An.  522;  Houston  &  Great 

used    by   the   contractor    to   preserve  Northern  Railroad  Co.  r.  Moador,  50 

timber.     West  v.  St.  Louis,  Vandalia,  Tex.  77.     Who  is  a  contractor  as  dis- 

&  Terre  Haute  Railroad  Co.,  63  111.  tinguished  from  a  servant.     Speed  r. 

545.     But  see  Cairo  &  St.  Louis  Rail-  Atlantic  &   Pacific  Railroad   Co.,  71 

road  Co.  o.  Woolsey,  85  lU.  370,  and  Mo.  303. 


640  LIABILITIES    FOR   CONTRACTORS,    AGENTS,   ETC.         [PART  VI. 

was  found  to  rest  on  no  satisfactory  basis,  and  was  subsequently 
abandoned.^ 

5.  The  grounds  of  all  the  decisions  upon  this  subject  arc  fully 
and  satisfactorily  explained,  in  the  cases  of  Ellis  v.  Gas  Consum- 
ers' Company ,2  and  Steel  v.  Southeastern  Railway. ^ 

6.  Sometimes  a  distinction  has  been  attempted  to  be  drawn,  in 
regard  to  the  employer,  whether  the  employment  were  by  the  job 
or  by  the  day,  making  him  liable  for  the  acts  of  the  operatives  in 
the  latter  and  not  in  the  former  case.  But  this  is  obviously  no 
satisfactory  ground  upon  which  to  determine  the  question,  although 
it  might,  in  point  of  fact,  come  very  nearly  to  effecting  the  same, 
or  a  similar  separation  of  the  instances  in  which  the  employer  is 
or  is  not  liable. 

7.  The  true  ground  of  the  distinction  being,  after  all,  not  the 
*  form  of  the  employment,  or  the  rule  of  compensation,  but 
whether  the  work  was  done  under  the  immediate  control  and 
direction  of  the  employer,  so  that  the  operatives  were  his  servants, 
and  not  the  servants  of  another,  who  was  himself  the  undertaker 
for  accomplishing  the  work,  and  having  a  separate  and  independ- 
ent and  irresponsible  control  of  the  operatives,  bringing  the  ques- 
tion again  to  the  same  point,  —  the  difference  between  a  contrac- 
tor and  a  servant.' 

^  Allen  V.  Hayward,  7  Q.  B.  960;  Reedie  v.  London  &  Northwestern  Rail- 
way Co.,  4  Exch.  244.  And  it  is  still  maintained,  by  some,  that  if  the  owner 
or  occupier  of  real  estate  employ  workmen  under  a  contract  which  presupposes 
the  underletting  of  the  work,  or  the  employment  of  subordinates,  and  in  the 
course  of  the  accomplishment  of  the  work  anything  is  done,  by  digging  or 
suffering  rubbish  to  accumulate,  which  amounts  to  a  public  nuisance,  whereby 
any  person  suffers  special  damage,  the  owner  or  occupier  of  the  premises  is 
liable.  Bush  v.  Steinman,  1  B.  &  P.  404;  Randleson  v.  Murray,  8  A.  &  E. 
109.  But  this  rule  is  questioned.  Fish  v.  Dodge,  4  Denio,  311.  And  after 
all  it  seems,  like  the  other  phases  of  the  same  question,  to  resolve  itself  into 
an  inquiiy,  how  far  the  first  employer  may  fairly  be  said  to  have  done,  or 
caused  to  have  done,  the  wrongful  act.  Burgess  v.  Gray,  1  C.  B.  578.  If  the 
nuisance  occurred  naturally,  in  the  ordinary  course  of  doing  the  work,  the 
occupier  is  liable ;  but  if  it  is  some  irregularity  of  the  contractor,  or  his  ser- 
vants, he  alone  is  responsible.  See  Carman  v.  Steubenville  &  Indianapolis 
Railroad  Co.,  4  Ohio  St.  399;  Thompson  v.  New  Orleans  &  Carrollton  Rail- 
road Co.,  1  La.  An.  178;  s.  c  4  La.  An.  262;  8.  c.  10  La.  An.  403. 

'  In  the  case  of  Blackwell  v.  Wiswall,  24  Barb.  355,  is  an  elaborate  opinion 

by  Harris,  J.,  which  was  affirmed  by  the  full  court,  which  holds  that  the  only 

ground  on  which  one  man  can  be  made  responsible  for  the  wrongful  acts  of 

another  is  that  he  should  have  controlled  the  conduct  of  such  person ;  that  the 

[*506] 


§  129.]       LIABILITIES    FOR    CONTRACTORS   AND   THEIR   AGENTS,  541 

8.  Ill  a  case  before  the  Privy  Council,  wlicre  tlio  ownorof  Innil 
employed  Indian  laborers  in  the  Mauritius,  at  so  much  per  acre, 
to  clear  it,  which  they  did,  partly  by  lighting  a  lire  so  negligently 
that  sparks  were  carried  by  the  wind  upon  the  land  of  another, 
and  there  burned  down  his  house,  it  was  held,  upon  the  ground 
that  the  owner  of  the  land  retained  control  of  the  work  and  made 
constant  interference  in  the  conduct  of  it,  that  he  was  responsible 
for  the  negligence  of  the  workmen,  as  the  relation  of  master  and 
servant,  or  superior  and  subordinate,  continued.^  (i) 

9.  Where  one  gratuitously  permits  a  carpenter  to  do  a  piece  of 
work  in  a  shed  belonging  to  the  former,  and  one  of  the  workmen 
of  the  carpenter,  in  the  course  of  the  work,  dropped  a  match  with 
which  he  had  lighted  his  pipe,  and  thereby  set  fire  to  the  shed,  it 
was  held  the  master  was  not  responsible  for  the  damage ;  notwith- 
standing the  jury  found  it  occurred  from  the  negligent  act  of  the 
defendant's  workman.^  But  it  would  have  been  otherwise  if  the 
negligence  had  occurred  in  the  course  of  the  employment. 

person  who  is  made  liable  for  the  acts  of  another  must  stand  in  the  relation  of 
superior,  and  hence  that  one  who  has  obtained  the  exclusive  right  of  a  ferry, 
and  who  suffers  another  to  operate  it  for  liis  own  benefit,  as  lessee,  is  not  re- 
sponsible for  any  injury  inflicted  on  passengers,  through  the  negligence  or  un- 
skilfulness  of  the  servants  of  the  lessee,  who  conduct  the  ferry,  and  that  it 
would  make  no  difference  if  the  lessee  had  been  himself  conducting  the  ferry, 
at  the  time  the  injury  accrued;  that  if  it  were  true  that  the  grantee  of  the 
ferry  was  guilty  of  a  breach  of  duty,  in  making  the  lease,  it  will  not  entitle 
any  one  to  sue  on  that  account,  unless  he  has  sustained  injury  resulting  from 
the  act  of  leasing  directly,  and  not  incidentally  merely. 

8  Serandat  v.  Saisse,  Law  Rep.  1  P.  C.  loL^  s.  c.  12  Jur.  x.  s.  301.  The 
case  was  governed  by  the  rule  laid  down  in  the  Code  Napoleon,  but  that  is 
not  essentially  different  from  the  rule  of  the  English  law  on  the  subject.  Tlie 
employer  is  responsible  for  injuries  caused  by  falling  into  excavations  made 
on  his  land  by  contract.  Iloman  v.  Stanley,  (iG  Penn.  St.  104.  But  a  niihv.ny 
company  is  not  responsible  for  the  act  of  a  contractor  in  using  a  poisonous 
composition  to  prevent  the  decay  of  timber  put  into  the  road,  whereby  the 
workmen  are  injured  in  handling  it.  West  v.  Railroad  Co.,  5  Chicago  Ix?gal 
News,  38.  The  opinion  in  this  case  by  Chief  Justice  Lawuk-nxk  givo.s  a 
very  satisfactory  view  of  the  law  on  this  question. 

i)  AVilliams  v.  Jones,  3  11.  &  C.  002;  s.  c.  11  Jur.  x.  s.  813;  Woodman  r. 

(//)  Hughes  V.  Cincinnati  &  Spring-  fective  machinery  which  the  company 

field    Railway  Co.,   15   Am.    &  Eng.  furni.shes  him  for  d.ung  the  work,  tho 

Railw.    Cas.    100.      But   though    the  company  may  ho.  li.-ible.     Conlon  r. 

contractor  has  control  of  the  work,  if  Eastern  Railroad  Co.,  135  Mass.  195. 


injury  to  a  stranger  is  caused  by  de- 


[•500] 


542 


LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.       [PART  VI. 


*10.  And  where  a  railway  company  was  empowered  by  act  of 
parliament  to  build  a  bridge  across  a  navigable  river,  but  were  to 
do  it  so  as  not  to  detain  vessels  longer  than  while  persons  and 
teams  ready  to  cross  the  bridge  were  passing  over ;  and  during  the 
construction  of  the  work  by  a  contractor,  by  some  defect  of  con- 
struction the  bridge  could  not  be  raised,  and  the  plaintiff's  vessel 
was  detained,  it  was  held  the  company  were  responsible.^*^ 

11,  A  person  employing  another  to  do  a  lawful  act  is  presumed, 
in  the  absence  of  evidence  to  the  contrary,  to  have  employed  him  to 
do  it  in  a  lawful  and  reasonable  manner ;  and,  therefore,  unless  the 
parties  stand  in  the  relation  of  master  and  servant,  the  employer 
is  not  responsible  for  damages  occasioned  by  the  negligent  mode  in 
which  the  work  is  donc.^^ 


SECTION  II. 

Liability  of  the  Company  for  Acts  of  their  Agents  and  Servants. 


1.  Courts  manifest   disposition  to   give 

such  agents  a  liberal  discretion. 

2.  Company  liable  for  torts  committed  by 

agents  in  discharge  of  their  duties. 

3.  May  be  liable  for  wilful  act  of  servant 

within  the  range  of  his  employment. 

4.  Assent  of  the  company,  whether  it  is 

necessary  to  show  it. 

5.  Most  of  the  cases  adhere  to  the  prin- 

ciple of  respondeat  superior. 

6.  7,  9.  Should  be  remembered  that  the 

company  is  virtually  present. 
8.  Where   the  company  owes  a  special 
duty,  the  act  of  the  servant  is  al- 
ways that  of  the  company. 

10.  Ratification  of  the  act  of  an  agent, 

what  constitutes. 

11.  Liability  of  corporations  for  the  pub- 

lication  of  a  libel. 


12.  Powers  of  a  corporation  such  only  as 

are  conferred  by  charter. 

13.  False  certificate  that  capital  has  been 

paid  in  money. 

14.  Gas  companj-  not  bound  to  supply  pas 

to  all  who  require  it. 

15.  Company   may    be  responsible    for 

false  imprisonment. 

16.  Company  responsible  for  injury  done 

by  vicious  animals  kept  or  suffered 
to  remain  about  its  stations. 

17.  General   manager  of  company  may 

bind  it  for  medical  aid  for  servant 
injured  in  its  employment. 

18.  Superintendent,  or  general  manager 

can  give  no  valid  authority  to  sub- 
ordinates to  do  an  act  operating  as 
a  fraud  upon  the  company. 


§  130.  1.  The  extent  of  the  liability  of  railways  for  the  acts  of 
their  servants  and  agents,  both  negative  and  positive,  seems  not 

Joiner,  10  Jur.  n.  s.  8.52;  Bartlett  v.  Baker,  3  H.  &  C.  153;  Blake  w.  Thirst, 
2  II.  &  C.  20. 

1'^  Hole  I'.  Sittingbourne  &  Sheerness  Railway  Co.,  G  H.  &  X.  488. 

"  Butler  I'.  Hunter,  7  II.  &  N.  826;  s.  p.  Eatou  v.  European  &  North  Ameri- 
can Railroad  Co.,  59  Me.  520. 
[*507] 


§  130.]       LIABILITIES    IN   REGARD   TO    AGENTS    AND   SERVANTS.  543 

very  fully  settled  in  many  of  its  incidents.  But  the  disposition  of 
*  the  courts  has  been  to  trive  such  agents  and  servants  a  large  and 
liberal  discretion,  and  hold  the  companies  liable  for  all  their  acts, 
within  the  most  extensive  range  of  their  charter  powers.*  (a) 

2.  This  seems  the  only  construction  which  will  be  safe  or  just, 
or  indeed  practicable.  It  has  long  been  settled,  that  corporations 
are  liable  for  torts  committed  by  their  agents,  in  the  discharge  of 
the  business  of  their  employment,  and  within  the  proper  range  of 
such  employ raent.2 

1  Derby  v.  Philadelphia  &  Reading  Railroad  Co.,  14  IIow.  468,  483;  Noyes 
V.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  110;  8.  c.  2  Redf.  Am.  Railw. 
Cas.  150.  We  may  suppose  the  officers  and  servants  of  railways  to  take  exor- 
bitant fare  and  freight,  to  refuse  to  permit  passengers  to  have  tickets  at  the 
fixed  rate,  or  to  destroy  the  life  of  animals,  or  of  persons,  by  recklessness,  or 
wantonness,  in  the  discharge  of  their  appropriate  duties,  and  it  would  be 
strange  if  the  company  were  liable  in  the  foniier  case,  on  account  of  its  spe- 
cial duty  as  common  carrier,  and  not  in  the  latter,  because  it  owed  no  duty  to 
the  public  in  that  respect.  Alabama  &  Tennessee  Rivers  Railroad  Co.  v. 
Kidd,  29  Ala.  221.  But  it  has  been  held  to  make  no  difference,  in  regard 
to  the  liability  of  the  company  for  the  act  of  its  servant,  while  acting  in  tlie 
due  course  of  his  emploj'ment,  that  he  did  not  follow  instructions,  either 
general  or  special.  Derby  v.  Philadelphia  &  Reading  Railroad  Co.,  supra. 
See  also  Southwick  v.  Estes,  7  Cush.  385;  Ramsden  r.  Boston  &  Albany 
Railroad  Co.,  101  Mass.  117. 

2  Yarborough  v.  Bank  of  England,  10  East,  G;  Queen  v.  Birmingham  & 
Gloucester  Railway  Co.,  3  Q.  B.  223;  Ilay  v.  Cohoes  Co.,  3  Barb.  42;  2  Aik. 
255,  429;  Bloodgood  v.  Mohawk  &  Hudson  Railroad  Co.,  18  Wend.  9;  8.  c. 
1  Redf.  Am.  Railw.  Cas.  209;  Dater  v.  Troy  Turnpike  &  Railroad  Co.,  2  Hill. 
629;  Chestnut  Hill  Turnpike  Co.  v.  Rutter,  4  S.  &  R.  IG.  They  are  bound 
by  estoppels  in  pais.  Hale  r.  Union  Mutual  Fire  Insurance  Co.,  32  N.  H. 
295.  See  also  Tebbutt  v.  Bristol  &  Exeter  Railway  Co.,  Law  Rep.  G  Q.  B. 
73,  where  three  railways,  terminating  at  one  point,  hail  their  stations  com- 
municating with  each  other  and  used  in  common  by  the  passengers  of  all  the 
roads;  and  while  a  passenger  of  one  of  the  other  roads  was  standing  on  the 
defendants'  platform,  in  passing  from  tlie  terminus  of  one  of  the  other  roads 
to  the  booking  office  of  the  other  company,  waiting  for  his  luggage,  one  of 
defendants'  porters  negligently  drove  a  truck  loaded  with  luggage,  antl  a  port- 
manteau fell  off  and  injnre.l  the  plaintiff.  Tiie  court  hold  the  defendant  re- 
sponsible for  this  misfeasance  of  its  .servant;  but  doubted  if  the  defendant 
would  have  been  responsible  for  any  defect  in  the  platform  over  which  plaiutiH 
was  allowed  to  pass,  whereby  he  suffered  danuige. 


(a)  As  to  liability  for  acts  of  servants  in  expelling  passengers  from  cars, 
see  ivfra,  §  203. 

[*o08] 


544  LIABILITY   FOR   CONTRACTORS,   AGENTS,    ETC.        [PART   VI. 

3.  But  it  lias  been  claimed  sometimes,  that  a  corporation  is  not 
liable  for  the  wilful  wrong  of  its  agents  or  servants.^  This  opin- 
ion seems  to  rest  upon  those  cases  which  have  maintained  that 
the  master,  whether  a  natural  person  or  a  corporation,  is  never 
liable  for  the  wilful  act  of  his  servant.*  Without  stopping  here 
to  discuss  the  soundness  of  the  general  principle,  as  applicable  to 
the  relation  of  master  and  servant,  it  must  be  conceded,  we  think, 
that  it  is  not  applicable  to  the  case  of  corporations,  and  especially 
such  as  railways.  In  regard  to  such  corporations,  it  seems  to  us 
altogether  an  inadmissible  proposition,  to  excuse  them  for  every 
act  of  their  servants  and  agents  which  is  done,  or  claimed  to  have 
been  done,  positively  and  wilfully,  and  which  results  in  an  injury 
to  some  *  other  party,  or  proves  to  be  illegal,  unless  directed  or 
ratified  by  the  corporation.  Some  of  the  cases  seem  to  disregard 
any  such  ground  of  exemption  for  the  corporation.^ 

4.  But  in  some  cases  it  has  been  held,  as  before  stated,  that 
the  corporation  is  not  liable  for  the  wilful  act  of  its  agents,  unless 
done  with  the  assent  of  the  corporation,  seeming  to  imply  that  if 
the  servant  pursue  his  own  whim  or  caprice,  and  act  upon  his  own 
impulses,  the  act  is  his,  and  not  that  of  the  corporation.^  (5) 

8  Foster  v.  Essex  Bank,  17  Mass.  479,  510;  State  v.  Morris  &  Essex  Rail- 
road Co.,  3  Zab.  360,  367. 

4  M'Manus  v.  Crickett,  1  East,  106;  Croft  v.  Allison,  4  B.  &  Aid.  590; 
Wright  V.  Wilcox,  19  Wend.  343;  Jackson  v.  Second  Avenue  Railroad  Co., 
47  N.  Y.  274;  Isaacs  v.  Third  Avenue  Railroad  Co.,  19  Wend.  122. 

s  Edwards  v.  Union  Bank,  1  Fla.  136;  Whiteman  v.  Wilmington  &  Sus- 
quehanna Railroad  Co.,  2  Harring.  Del.  514. 

*  Philadelphia,  Germantown,  &  Norristown  Railroad  Co.  v.  Wilt,  4  Whart. 

(b)  Galveston,  Harrisburg,  &  San  agenient  to  a  passenger  to  get  off  at  a 

Antonio    Railroad    Co.    v.    Donahoe,  watering  place  not  a  station,  and  a 

56  Tex.  162;  Priest  v.  Hudson  River  place  of  danger,  could  not  be  imputed 

Railroad   Co. ,    65   N.    Y.    589.     But  to  the  company.     And  see  Peeples  v. 

contra,  Quigley  r. Central  Pacific  Rail-  Brunswick  &  Albany   Railroad   Co., 

road    Co.,    11     Nev.    350;    and    see  60  Ga.  281;  Gilliam  i-.  South  &  North 

Chicago  &  Eastern   Illinois  Railroad  Alabama  Railroad  Co. ,  70  Ala.  268. 

Co.  V.  Flexman,  9  Brad.  250;  where  And   see  Marrier   v.    St.   Paul,  Min- 

it  is  held,  e.  g.,  that  the  company  is  neapolis,  &    Manitoba   Railway  Co., 

liable  to    a    passenger  for  a  wilful  15   Am.   &    Eng.    Railw.    Cas.    135, 

assault  by    a    brakeman.       See   also  where  it  is  held  that  the  company  is 

Illinois  Central  Railroad  Co.  v.  Green,  not  liable  for  damage  by  fire,  the  re- 

81  111.  19,  where  it  is  held  that  encour-  suit  of  a  fire  kindled  on  the  road- way 

[*509] 


§  ICO.J       LIABILITinS    I\    UEf;AltI)    TO    AGENTS    AND    SERVANTS.  ')^6 

*  5.  Most  of  the  cases,  upon  the  subject  of  the  liability  of  rail- 
ways  for  the  acts    of  their  oflicers,  agents,  and  servants,  have 

143  ;  Fox  V.  Northern  Liberties,  3  Watts  &  S.  103.  It  lias  always  seemed  tliat 
the  cases,  which  hold  that  the  master  is  not  liable  for  tiie  wilful  acts  of  his 
servant,  proceed  upon  a  misconception  of  the  case  of  M'.Manus  i-.  Crickett,  1 
East,  100,  for  tliey  ail  profess  to  base  themselves  on  that  case.  That  ca.se, 
we  apprehend,  was  never  intended  to  decide  more  than  that  the  ma.ster  is  not 
liable,  in  trespass,  for  the  wilful  act  of  the  servant.  Lord  Ke.vyox,  in  his 
opinion,  expressly  says,  speaking  of  actions  on  the  case  against  tiie  master, 
where  the  servant  negligently  did  a  wrong,  in  the  course  of  his  employment; 
"The  form  of  these  actions  shows,  that  wiiere  the  servant  is,  in  point  of  law, 
a  trespasser,  the  master  is  not  liable,  as  such,  though  liable  to  make  compen- 
sation for  the  damage  consequential  from  his  employing  of  an  unskilful  or 
negligent  servant."  "  The  act  of  the  master  is  the  employment  of  the  servant." 
This  reasoning  applies  with  the  same  force  to  cases  where  the  act  of  the 
servant  is  both  direct  and  wilful,  as  to  those  where  it  is  only  negligent.  The 
master  is  not  liable  in  either  case,  so  much  for  having  impliedly  authorized  the 
act,  as  for  having  employed  an  unfaithful  servant.  Whether  it  is  done  neg- 
ligently or  wilfully  seems  to  be  of  no  possible  moment,  as  to  the  liability  of 
the  master,  the  only  inquiry  being  whether  it  was  done  in  the  course  of  the 
servant's  employment.  And  the  argument,  that  when  the  servant  acts  wil- 
fully, he  ipso  facto  leaves  the  employment  of  tlie  master,  and  if  he  is  driving 
a  coach-and-six,  or  a  locomotive  and  train  of  cars,  has  a  special  pro|>erty  in 
the  things,  and  is,  pro  hac  vice,  the  owner,  and  doing  his  own  business,  niay 
sound  plausible,  but  we  think  it  unsound,  although  quoted  from  so  ancient 
a  date  as  Rolle's  Abridgment,  and  adopted  by  so  distinguished  a  judge  as  Lord 
Kexyox.  The  truth  is,  the  argument  is  only  a  specious  fallacy;  and  whether 
Lord  Kenyox  intended  really  to  say,  that  no  action  will  lie  against  the  master 
in  such  case,  or  only  to  say,  what  the  case  required,  that  the  master  is  not 
liable  in  trespass,  it  is  very  obvious  that  the  proper  distinction  cannot  be 
made  to  depend  on  the  question  of  the  intention  of  the  servant.  Tlie  master 
has  nothing  to  do,  either  way,  with  the  intention.  It  is  by  acts  that  he  is 
affected,  and  if  these  come  within  the  range  of  the  employment,  the  master 
is  liable,  whether  the  act  be  a  misfeasance,  or  a  non-feasance,  an  omission  or  a 
commission,  carelessly  or  purposely  done.  It  will  happen,  doubtless,  whore 
the  master  is  under  a  positive  duty  to  keep  or  carry  things  safely,  as  a  bailee, 
or  to  carry  persons  safely,  that  while  he  will  be  liable  for  the  mere  non-fea-s. 
auce  of  the  servant,  the  servant  will  not  be  liable  to  the  same  party,  there 
being  no  privity  between  the  servant  and  such  party,  no  duty  owing  to  such 
person  from  the  servant.  But  in  such  case  the  servant  will  be  liable  for  his 
positive  wrongs,  and  wilful  acts  of  injury,  and  the  master  liable  for  these  latter 
acts,  but  ordinarily  not  in  trespass  as  the  servant  is,  but  in  case.  And  an, 
where  the  servant  goes  out  of  his  employment,  and  commits  a  wnmg.  e.  g.  an 

by  section  men  to  warm  their  meals     the  men  had  any  sui^ervision  of  the 
which,  left  unextinguished,  spread  to     right  of  way. 
adjoining  land,  it  not  appearing  that 

VOL.  I. -35  ['olO] 


546  LIABILITY    FOR   CONTRACTORS,   AGENTS,   ETC.        [PART   YI. 

attempted  *  to  carry  out  the  analogy  of  principal  and  agent,  or 
master  and  servant,  as  between  natural  persons,  and  to  apply 
strictly  the  principle  of  respondeat  swperior."'  (c) 

assault  on  a  stranger,  a  theft,  or  any  other  act  wholly  disconnected  with  his 
employment,  the  master  is  not  liable.  This  is  the  view  taken  of  this  subject 
by  Reeve  in  Reeve  Dom.  Rel.  358,  359,  360,  and  it  is,  we  think,  the  only 
consistent  and  rational  one,  and  the  one  which  must  ultimately  prevail.  It  is 
virtually  adopted,  in  regard  to  corporations,  in  England.  Queen  v.  Great 
North  of  England  Railway  Co.,  9  Q.  B.  015.  In  State  v.  Vermont  Central  Rail- 
road Co.,  27  Vt.  103;  Maund  v.  Monmouthshire  Canal  Co.,  4  M.  &  G.  452, 
it  is  held,  that  trespass  will  lie  against  a  corporation  for  the  act  of  its 
servant.  Tliis  is  familiar  law  in  the  American  courts.  And  it  is  not  deemed 
of  any  importance  that  the  agent  should  act  by  any  particular  form  of  appoint- 
ment; and  it  would  be  strange  if  the  liability  of  the  corporation  could  be 
made  to  depend  upon  the  intention  of  the  agent.  This  distinction  is  not 
claimed  to  be  of  any  importance  where  the  company  owe  a  duty,  as  carriers 
of  freight  or  passengers,  for  there  the  corporation  is  liable  for  all  the  acts  of 
its  servants;  but  for  the  acts  of  its  servants  in  regard  to  strangers,  it  has  been 
claimed  there  is  no  liability  where  the  servant  acts  wilf ullj^  unless  the  corjiora- 
tion  directs  or  affirms  the  act  of  the  servant.  And  to  this  we  may  assent,  in 
a  qualified  sense.  The  corporation  does  virtually  assent  to  all  the  acts  of  its 
agents  and  servants,  done  in  the  regular  course  of  their  employment.  A  rail- 
way or  any  business  corporation  exists  and  acts  only  by  its  agents  and  ser- 
vants, and  by  putting  them  into  their  places,  or  suffering  them  to  occupy 
them,  the  company  consents  to  be  bound  by  their  acts.  Thus,  a  conductor 
or  engineer  of  a  railway,  while  he  acts  with  the  instruments  which  the  com- 
pany puts  into  his  hands  is  acting  instead  of  the  corporation,  and  his  acts  will 


'  Sherman  v.  Rochester  &  Syracuse  Railroad  Co.,  15  Barb.  574,  577; 
Vanderbilt  i'.  Richmond  Turnpike  Co.,  2  N.  Y.  479.  In  the  latter  case,  it 
was  held  tliat  the  company  was  not  liable  for  the  trespass  committed  by  its 
servants,  although  the  act  was  directed  by  the  president  and  general  agent  of 
the  company,  he  having  no  authority  to  command  an  unlawful  act.  The  same 
rule  is  laid  down  in  Lloyd  v.  New  York,  1  Seld.  309;  Ross  v.  Madison,  1  Ind. 
281.  And  in  an  English  case,  Storey  v.  Ashton,  17  W.  R.  727;  s.  c.  Law 
Rep.  4  Q.  B.  476,  it  was  held  that  the  master  was  not  liable  for  the  act  of 
his  servant,  in  driving  a  cart  against  another  in  the  street,  where  the  servant 
had  left  the  business  of  the  master  and  gone  some  distance  on  his  own  busi- 
ness, when  the  accident  occurred,  s.  v.  Little  Miami  Railroad  Co.  v.  Wet- 
more,  19  Ohio  St.  110. 

(r)  Where  a  conductor  returned  to  guage,  he  was  held  not  acting  in  the 

a  car  and  asked  a  passenger  why  he  discharge  of  his  duty,  and  the  com- 

did  not  get  off  at  the  station  for  which  pany  was  held  not  liable.     Parker  v. 

he  had  a  ticket,  the  train  not  having  Erie  Railway  Co.,  5  Ilun,  57. 
stopped  there,  and  used  insulting  Ian- 

[*511] 


§  loO.]       LIABILITIES    IN    RKGAUI)    TO    AGENTS    AND    SERVANTS.         547 

*  G.  But  tlicy  seem  to  have  lost  sight  of,  or  not  siinieiently  to 
have  considered,  one  peeuliurity  of  this  niodt-  of  transportation  of 

bind  the  corporation,  whether  done  negligently  or  cautiously,  heedlessly  or 
purposely.  It  would  be  anomalous  to  hold  the  company  liable  for  cattle  killed 
carelessly  on  the  track,  but  not  for  those  killed  purposely  by  the  engineer,  or 
other  sfrvants  of  the  company.  It  is  probably  true,  that  if  tlie  engineer 
should  kill  cattle,  in  any  way  wholly  disconnected  with  his  employment, 
either  on  the  land  of  the  company  or  of  others,  the  company  could  not  be 
made  liable;  but  if  the  engineer  should  destroy  them  wilfully,  by  rushing  the 
engine  upon  them,  the  company  would  be  liable  undoubtedly,  if  any  one  were, 
of  which  there  can  be  little  question.  So  the  company  might  not  be  lial)Ie  if 
the  engineer  should  drive  the  engine  upon  another  road  and  there  do  damage, 
when  his  employment  extended  to  no  such  transaction.  The  case  of  South- 
eastern Ilailway  Co.  v.  European  &  American  Telegraph  Co.,  9  Exch.  363, 
seems  to  have  adopted,  in  principle,  the  view  for  which  we  contend.  The  act 
here  complained  of  was,  boring  under  the  railway,  and  it  was  held  that  the 
company  had  no  right  to  do  it,  and  was  liable,  in  trespnsx,  for  this  unauthorized 
act  of  its  servants.  See  also  Sinclair  v.  Pearson,  7  N.  H.  219,  L''27,  opinion  of 
Parker,  C.  J.;  Philadelphia  &  Reading  Railroad  Co.  r.  Derby,  11  How. 
1G8,  4S3,  Grikr,  J.;  Case  of  the  Druid.  1  W.  Rob.  Adin.  3^1,  opinion  of 
Dr.  Lusiii.VGTOX  reviewing  the  cases. 

"We  do  not  veiy  well  see  why  the  railwiiy  is  not  liable  to  the  veiy  same 
action  which  the  servant  would  be,  because  his  act  is  the  act  of  the  corporation, 
within  tlie  range  of  his  employment.  See  Sharrod  v.  London  &  Xortliwestern 
Railway  Co.,  -1  E.xch.  580,  where,  for  running  over  sheep  on  the  track,  it  is 
held  that  the  action  must  be  case.  The  distinction  between  tliis  case  and  that 
of  Southeastern  Ilailway  Co.  v.  European  &  American  Telqgraph  Co.,  supra,  is 
not  very  obvious,  unless  we  suppose  in  the  latter  case  a  vote  of  the  corporation, 
which  is  highly  improbable.  See  Philadel[)hia  Railroad  Co.  r.  Wilt,  4  Wliart. 
113,  where  it  is  said  the  action  should  be  case,  and  that  trespass  will  not  lie 
unless  the  act  is  done  by  the  command  or  with  the  assent  of  tlie  cor{)<)ratiou, 
which  could  never  occur.  Corporations  do  not  vote  such  acts.  A  vote  of  a 
corporation  that  its  engineers  should  run  its  engines  over  cattle  would  be  an 
anomaly.  In  Sloath  v.  Wilson,  9  C.  &  P.  G(»7,  where  a  servant  had  been 
driving  his  master's  carriage,  and  being  directed  to  return  to  the  stable,  or 
while  that  was  his  duty,  in  the  ordinary  course  of  his  employment,  lie  went 
out  of  his  way  with  the  carriage,  to  do  some  errand  of  his  own,  and  drove 
against  a  person  negligently,  it  was  held  that  the  master  was  liable,  this 
being  the  act  of  the  servant,  in  the  course  of  his  employment,  because  the 
injury  was  done  with  the  master's  horses  and  carriage,  which  he  put  into  the 
servant's  hands.  Rut  here  the  servant  was  far  more  obviously  going  aside 
from  liis  employment  than  in  the  supposed  case  of  his  assumincr  to  do  a  wil- 
ful wrong  in  the  direct  course  of  his  ordinary  employment.  This  case  cer- 
tainly cannot  stand  with  the  ar^fument  of  the  court  in  M'Manus  r.  Crickett. 
And  yet  it  is  confirmed  by  other  cases.  Joel  v  Morrison.  G  C.  &  P.  .^t'l.  Any 
different  view  of  this  subject  will  bring  us  back  to  the  earlier  theory  of  the  re- 

[•512] 


548  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.       [PART   VI. 

freight  and  passengers,  —  that  the  superior  is  virtually  always 
present,  in  the  person  of  any  of  the  employds,  within  the  range  of 

lation  of  corporations  to  their  servants;  that  corporations  are  not  liable  for  torts 
committed  by  their  servants,  they  having  no  authority  to  bind  the  coi*poration 
by  unlawful  acts.  There  is  an  elaborate  case  in  Maine,  State  v.  Great  Works 
^lill  &  Manufacturing  Co.,  20  Me.  41,  taking  precisely  the  old  view  of  the 
liability  of  corporations  for  the  acts  of  their  servants,  where  the  act  proves 
unlawful.  But  most  of  the  later  cases  hold  the  company  liable  for  the  torts  of 
its  agents,  done  in  the  course  of  the  agency.  But  the  company  is  not  liable 
for  injuries  to  persons  or  property  through  the  recklessness  and  want  of  com- 
mon care  and  prudence  of  such  persons,  or  property,  as  where  a  slave  lies 
down  to  sleep  on  the  track  of  a  railway  and  is  run  over  by  a  train  of  cars,  it 
not  being  possible  to  see  him  twenty  feet  away  on  account  of  the  grass  on  the 
track.  Felder  v.  Railroad  Co.,  2  McMul.  Eq.  403.  See  also  Mitchell  v. 
Crassweller,  13  C.  B.  237;  s.  c.  16  Eng.  L.  &  Eq.  448;  Leame  i;.  Bray,  3 
East,  .593;  Claflin  v.  Wilcox,  18  Vt.  605,  where  the  principles  involved  in  this 
inquiry  are  examined.  Smith  v.  Birmingham  Gas  Co.,  1  A.  &  E.  526.  In 
two  cases  in  Connecticut,  Crocker  v.  New  London,  Willimantic,  &  Palmer 
Railroad  Co.,  24  Conn.  249,  and  Thames  Steamboat  Co.  v.  Housatonic  Railroad 
Co.,  24  Conn.  40,  the  general  proposition  is  maintained,  that  railway  companies 
are  not  liable  for  acts  done  without  the  command  of  the  agent  having  the 
superior  control  in  that  department  of  the  company's  business,  and  out  of 
the  range  of  the  particular  employment  of  the  servant  doing  the  act.  This 
seems  to  be  a  sound  and  ju.st  proposition.  See  also  Giles  v.  Taff  Yale  Rail- 
way Co.,  2  Ellis  &  B.  822;  Glover  v.  London  &  Xorthwestern  Railway  Co., 
5  Exch.  66. 

In  Illinois  Central  Railroad  Co.  r.  Downey,  18  111.  259,  it  is  said  that  case 
cannot  be  maintained  against  a  corporation  for  injuries  wilfully  and  intention- 
ally committed  by  its  servants,  and  not  occasioned  in  the  course  of  their  em- 
ployment in  the  pursuit  of  their  regular  business.  The  judge,  in  laying  down 
the  proposition,  seems  to  found  himself  upon  the  form  of  the  action.  But  if 
any  action  will  lie  against  a  corporation  for  the  wilful  mi.sconduct  of  its 
agents,  we  do  not  see  why  it  may  not  be  that  which  is  ordinarily  brought 
against  natural  persons  for  similar  injuries.  But  the  proposition  laid  down  in 
the  case  is  not  entirely  clear.  The  act  of  a  servant  may  be  in  the  direct 
course  of  his  employment  and  business,  and  still  be  wilful,  and  that  was  the 
very  case  before  the  court,  if  the  act  was  done  wilfully.  And  where  a  passen- 
ger got  into  an  altercation  with  the  baggage-master  and  so  provoked  him  that 
he  gave  the  passenger  a  blow,  it  was  held  that  the  company  was  not  responsi- 
ble. Little  j\Iiami  Railroad  Co.  v.  W^etmore,  19  Ohio  St.  110.  In  Bayley  v. 
Manchester,  Sheffield,  &  Lincolnshire  Railway  Co.,  Law  Rep.  7  C.  P.  415, 
this  question  seems  to  be  placed  on  its  true  ground.  The  declaration  con- 
tained counts  in  both  trespass  and  case.  The  facts  were  that  the  plaintiff  had 
procured  his  ticket  and  was  in  the  right  carriage.  But  just  before  the  train 
started  he  inquired  of  one  of  the  porters  of  the  company  if  he  was  in  the 
right  carriage  and  the  porter  told  hira  he  was  not  and  he  must  come  out,  and 

[*512] 


§  130.]       LIADILITIKS    IN    lUCUARI)    TO    AGENTS    AND    PERVANTS.         .'349 

the  employment,  as  much  so  as  is  practicable  in  such  cases.  An<l 
this  *  consideration,  in  regard  to  natural  persons,  is  hold  sulliciont 
to  make  the  superior  always  liable  for  the  act  of  the  subordinate, 
whether  done  negligently  or  wilfully.^ 

7.  And  although  the  cases  seem  tu  treat  the  superior  as  alwavs 
absent,  in  the  case  of  injuries  done  by  railways,  it  is  submitted, 
that  the  more  just  and  reasonable  rule  is  to  regard  the  principal 
as  always  present,  when  the  servant  acts  within  tlie  range  of  his 
employment.^ 

8.  This  distinction  is  of  no  importance  in  regard  to  the  lialulity 
of  railways  as  carriers  of  freiglit  and  passengers,  for  then  the  law- 
makes  the  company  liable  absolutely  in  one  case,  and  in  the  other 
as  far  as  care  and  diligence  can  effect  security.  Those  cases, 
therefore,  which  have  excused  corporations  as  bailees  of  goods  for 
hire,  when  they  were  purloined  by  their  servants,  it  would  seem, 
are  necessarily  wrong.^'' 

9.  But,  as  railways  arc,  like  other  corporations,  mere  entities  of 
the  law,  inappreciable  to  sense,  we  do  not  see  why  this  abstraction 
should  not  l)e  regarded  as  always  existing  and  present  in  the  di.s- 
charge  of  its  functions.  It  is  indeed  a  mere  fiction,  whether  we 
regard  the  company  as  present  or  absent.     And  it  seems  more  just 

just  as  the  train  was  getting  in  motion  he  violently  jmlled  him  out  of  the 
carriage,  and  both  falling  on  the  platform  the  j)laintifE  received  tiie  injuries 
complained  of.  The  porters  were  by  law  to  act  under  the  orders  of  tlie 
station-masters  in  doing  the  work  about  the  stations.  The  by-laws  forbade 
any  one  to  enter  or  ride  in  a  carriage  except  where  he  had  procured  a  ticket  in 
the  direction  the  train  was  going.  There  was  no  express  by-law  or  regulation 
justifying  the  removal  of  a  passenger  from  a  carriage,  except  wiiere  he  was 
intoxicated  or  persisted  in  smoking  in  a  non-smoking  carriage.  Tlie  court 
lield  the  company  responsible,  on  the  ground  that  the  servant  was  acting  on 
behalf  of  the  company  within  the  scope  of  his  employment.  lUit  it  is  here 
said  by  the  learned  judge,  that  the  act,  to  bind  the  master,  must  be  done  by 
the  servant  in  the  bona  fide  pursuit  of  his  employment,  and  not  of  his  own 
mere  caprice. 

8  ^lorse  V.  Auburn  &  Syracuse  Railroad  Co.,  10  Rarb.  (V2\  ;  Vanec^rift  r. 
Railroad  Co.,  2  X.  J.  185,  188.  See  also  Hurton  r.  Pliiladelphia.  Wilmington, 
&  Baltimore  Railroad,  4  Ilarring.  Del.  252. 

^  Chandler  v.  Broughton,  1  Cromp.  &  M.  29.  In  this  case  it  is  held,  that 
if  the  master  is  present,  although  passive,  he  is  liable  for  the  wilful  act  of  his 
servant.     IM'Laughlin  v.  Pryor,  1  Car.  &  :\I.  ;]54. 

^°  Foster  v.  Essex  Bank,  17  Mass.  470.  510.  Trespa.ss  will  lie  against  a 
railway  company.     Crawfordsville  Railroad  Co.  c.  Wright,  5  Ind.  2.V2. 

[•313] 


550  LIABILITY    FOR    CONTRACTORS,    AGENTS,   ETC.       [PART   VI. 

and  reasonable,  that  the  fiction  should  not  be  resorted  to,  to 
excuse  just  responsibility.  It  is  certain  we  never  require  proof 
of  any  organic  action  of  the  corporation,  to  constitute  railways 
carriers  of  freight  and  ])assengers.  All  that  is  required,  to  create 
the  liability,  is  the  fact  of  their  assuming  such  offices.  So, 
too,  for  the  most  part,  in  regard  to  injuries  to  strangers  and 
mere  torts,  it  is  not  expected  tliat  proof  will  be  given  of  any 
express  authority  to  the  servant  or  employe  to  do  the  particular 
act." 

*  10.  "What  shall  amount  to  a  ratification  of  the  acts  of  its 
agent  by  the  stockholders  of  the  corporation,  so  as  to  give  an 
authority  not  expressly  conferred,  or  one  not  intended  to  have 
been  conferred,  or  even  where  the  formal  act  of  the  corporation 
was  a  denial  of  the  autliority,  has  been  a  good  deal  discussed,  and 
is  not,  perhaps,  susceptible  of  a  specific  definition.     The  question 


11  Lowell  V.  Boston  &  Lowell  Railroad  Co.,  23  Pick.  24.  Numerous  cases 
on  the  subject  of  the  liability  of  railway's  show  this  practically.  AVhere  the 
company  begins  to  run  trains  before  condemning  the  land  to  its  use,  it  is  sel- 
dom that  the  act  of  ruiming  them  is  traceable  directly  to  the  corporation, 
except  as  the  act  of  the  employes.  This  is  always  done  by  design,  and  no 
doubt  was  ever  entertained  that  the  company  are  liable,  and  in  trespass,  to 
the  land-owner,  which  could  not  be  the  case  on  the  strict  analogies  referred  to 
supra,  note  6,  unless  the  corjjoration  were  regarded  as  present  and  assenting 
to  the  act.  Hazen  v.  Boston  &  Maine  Railroad  Co.,  2  Gray,  574;  Eward  v. 
Lawrenceburg  &  Upper  Mississippi  Railroad  Co.,  7  Ind.  711;  Hall  i'.  Picker- 
ing, 40  Me.  548.  The  rule  laid  down  on  this  subject  by  Lord  Denman,  in 
Rex  V.  Medley,  6  C.  &  P.  292,  a  case  which,  although  at  Nisi  Priiis,  seems  to 
have  been  examined  and  acquiesced  in  by  all  the  judges  of  the  King's  Bench, 
exhibits  the  sagacity  and  wisdom  of  its  author.  That  is  the  case  of  an  indict- 
ment against  the  directors  of  a  gas  company  for  the  act  of  the  company's 
superintendent  and  engineer,  in  conveying  the  refuse  gas  into  a  gi'eat  public 
river,  whereby  the  fish  are  destroyed,  and  the  water  rendered  unfit  for  use, 
&c.,  thereby  creating  a  public  nuisance.  No  distinction  is  attempted,  or  could 
fairly  be  made  here,  between  the  liability  of  the  company  and  that  of  the 
directors.  The  court  held  the  directors  liable  for  an  act  done  by  their  super- 
intendent and  engineer,  under  a  general  authority  to  manage  the  works, 
though  they  were  personally  ignorant  of  the  particular  plan  adopted,  and 
though  such  plan  was  a  departure  from  the  original  and  understood  method, 
which  the  directors  had  no  reason  to  suppose  was  discontinued.  The  learned 
judge  uses  this  significant  language,  which  fully  justifies  all  that  the  present 
writer  contends  for:  "  It  seems  to  me  both  common  sense  and  law,  that  if 
persons,  for  their  own  advantage,  employ  servants  to  conduct  works,  they 
must  be  answerable  for  what  is  done  by  those  servants." 

[*514] 


§  130.]       LIABILITIKS    IN    RKGARD    TO    ACKNTS    AND   SERVANTS.  'j'j\ 

is  discussed  and  the  authorities  oxauiiucd  in  Cumbcrhind  Coul 
Coin[)aiiy  v.  i^hL'vmimP  {d} 

11.  And  it  seems  to  be  sctth-d,  both  in  lliis  c^ountrv  and  in 
England,  tiuit  a  corporation  may  become  responsibb'  for  tlic  j)ub- 
lication  of  a  liljcl.  In  the  Enulish  case, '^  a  railway  C(jmpany  were 
held  resi)onsiblc  for  telegraphing  along  their  line,  that  the  plain- 
tiffs, Avho  were  bankers,  had  stopped  payment.  Lord  Camphkll 
said  :  The  allegation  of  malice  "  may  be  ])roved  by  sliowing  that 
the  publication  of  a  libel  took  place  by  order  of  the  defendants, 
and  was  therefore  wrongful,  although  the  defendants  held  no  ill 
will  to  the  i)laintif("s,  and  did  not  mean  to  injure  them. "  And 
the  leading  American  case  ^*  decides  that  a  railway  may  be  liable 
for  a  libel  *  i)ul)lished  and  circulated  in  their  rejjorts,  wherein  they 
represented  the  plaintiff  as  an  incompetent  mechanic  and  builder 
of  bridges,  station-houses,  and  other  structures,  and  wantiug  in 
all  i-equisite  cajjacity  and  skill  for  such  emjdoyment.  The  court 
held  that,  in  the  absence  of  express  malice  or  bad  faith,  the  rcjjort 
to  the  stockholders  is  a  privileged  communication,  but  the  privilege 
does  not  extend  to  the  publication  of  the  report  and  evidence  in  a 
book  for  distribution  among  the  persons  belonging  to  the  corpora- 
tion and  others,  and  so  far  as  the  corporation  authorized  the  i)ub- 
lication  in  the  form  employed  they  are  responsible  in  damages. 

12.  It  is  well  settled,  that  corporations  have  no  powers  except 
such  as  are  conferred  by  their  charters,  or  incidentally  requisite 
to  carry  into  effect  the  purposes  of  their  charters.  Hence  it  was 
held,  that  a  charter  to  build  a  road  to  the  top  of  a  mountain  and 
take  tolls  thereon  does  not  warrant  the  company  in  purchasing 
horses  and  carriages  and  establishing  a  stage  route.  Nor  does 
an  additional  act  for  erecting  and  leasing  buildings  for  the  ac- 
commodation of  the  business  of  the  company  or  uthi-rs  on  the 

12  30  Barb.  ;j.>3. 

13  WliiU-fu'1.1  r.  Southeastern  Railway  Co.,  Ellis,  B.  &  E.  115. 

i-*  riiilatlelphia,  ^^'ilIlli^gton,  &  lialtiinore  Kailroad  Co.  v.  QuiLjloy.  21  How. 
202;  s.  c.  2  Rcdf.  Am.  Kailw.  Cas.  330. 

(d)  Retention  and  promotion  of  West  Boint  Railroad  Co.,  oS  Ga.  210. 
the  servant  in  his  employment  after  And  immediate  notice  to  the  con- 
notice  of  the  commission  of  the  act  dnctor  of  misconduct  by  a  brakeman 
com[ilained of,  is  ratification.  Bass  r.  is  notice  to  the  company.  B.xss  r. 
Chioago  &  North  western  Railway  Co.,  Chicairo  &  Northwestern  Railway  Co.. 
42    Wis.    Col;    Casway    v.  Atlanta  &  supra. 

[•Olo] 


552  LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC.       [PART    VI. 

road  have  that  effect.    And  an  agent  can  do  no  act  not  within  the 
corporate  powers,  nor  can  the  corporation  ratify  any  such  act.^^ 

13.  Where  the  statute  requires  the  directors  of  a  corporation  to 
certify  the  fact  of  the  capital  stock  being  paid  into  the  treasury 
in  cash,  and  this  is  done,  when  in  fact  the  payment  was  made  in 
property  of  uncertain  value,  such  certificate  is  false,  and  the 
directors  responsible  for  the  debts  of  the  company,  under  the 
statute  imposing  that  penalty  for  making  a  false  certificate  in 
that  respect. 1^ 

14.  A  gas  company  chartered  for  the  purpose  of  lighting  the 
streets  and  buildings  of  a  town,  is  not  obliged  to  supply  gas  to  all 
persons  having  buildings  on  the  line  of  their  pipes,  upon  being 
tendered  reasonable  compensation.^" 

15.  In  one  case  ^^  it  is  said  the  company  are  responsible  for  a 
*  false  imprisonment  committed  by  its  agents,  and  no  authority 
under  seal  is  requisite  ;  but  there  must  be  evidence  justifying  the 
jury  in  finding  that  the  company's  servants  who  did  the  act  had 
authority  from  the  company  to  do  so.  In  this  case  the  plaintiff 
had  been  taken  into  custody  by  the  servants  of  the  company,  and 
by  direction  of  the  superintendent  of  the  line,  carried  before  a 
magistrate,  and  charged  with  an  attempt  to  travel  in  one  of  the 

15  Downing  v.  Mount  Washington  Road  Co.,  40  N.  II.  230. 

1°  Waters  v.  Quimby,  3  Dutcher,  108.  ' 

1"  Paterson  Gas  Light  Co.  v.  Brady,  3  Dutcher,  2-45. 

18  Goff  V.  Great  Northern  Railway  Co.,  3  Ellis  &  E.  672;  s.  c.  7  Jur.  x.  s. 
286.  But  where  the  station-master  ordered  the  owner  of  a  horse  into  custody 
till  it  could  be  ascertained  if  his  claim  that  the  horse  was  to  be  carried  free  of 
charge  was  well  fouuded,  it  was  held  that,  as  there  could  be  no  pretence  of  the 
company's  having  any  claim  to  make  any  such  arrest,  it  could  not  be  held  lia- 
ble for  what  was  so  manifestly  a  mere  tort  of  the  servant.  Poulton  r.  London 
&  Southwestern  Railway  Co.,  Law  Rep.  2  Q.  B.  53i.  But  where  the  servant 
of  a  railway  company  does  an  act  of  force  towards  another,  in  the  due  course 
of  his  employment,  or  under  discretionary  authority  from  the  company,  as  in 
expelling  a  passenger  from  the  cars  for  not  paying  fare,  under  a  mistake  of 
the  fact,  or  with  needless  violence,  the  company  is  responsible,  and  the  action 
may  be  against  the  servant  and  corporation  jointly.  Moore  v.  Fitchburg 
Railroad  Co.,  4  Gray,  4G5.  But  the  president  of  the  company  is  not  liable  in 
sucli  case  for  merely  transmitting  tiie  general  authority  of  the  corporation  to 
the  servant,  but  would  be  if  he  originated  the  particular  order.  Hewett  v. 
Swift,  3  Allen,  420.  See  St.  John  v.  Eastern  Railroad  Co.,  1  Allen,  544. 
So,  too,  the  company  is  responsible  for  any  negligence  or  misconduct  of  its 
servants,  in  the  course  of  their  employment,  in  assisting  passengers  to  alight 
from  the  cars.     Drew  v.  Sixth  Avenue  Railroad  Co.,  40  X.  Y.  429. 

[*516] 


§  130.]       LIABILITIES    IN    REGARD   TO    AGENTS   AND    SERVANTS.  5;j3 

conii)aiiy's  carriatres  witliout  havinj^  first  paid  liis  fare  and  pro- 
cured a  ticket.  The  fact  was,  he  had  ])aid  his  fare  and  procured 
a  ticket  and  niishiid  it  at  home,  and  by  mistake,  taken  another 
ticket  accidentally  laid  in  the  same  j)lace.  He  explained  the  trans- 
action to  the  company's  servants,  and  declined  to  j)ay  fare  a^rain, 
because  he  had  not  the  means,  but  oflered  to  pawn  some  of  the 
tools  of  his  trade  which  he  had  with  him.  The  court  held,  that, 
as  some  one  must  have  authority  to  act  for  the  company  in  such 
emergencies,  the  superintendent  of  the  line  must  be  regarded  as 
having  that  authority.  The  jury  gave  a  verdict  for  the  j)laintill'  for 
X50  damages,  and  the  court  declined  to  intei-fere  on  the  ground 
that  they  were  excessive.  The  wonder  is  that  any  one  should 
have  had  any  hesitation  in  regard  to  the  acts  of  the  agents  who 
thus  acted  in  matters  representing  the  company.  It  should  be 
considered  in  all  cases,  that  where  a  servant  of  any  corporation 
docs  any  act  coming  fairly  within  the  scope  of  the  business  in- 
trusted to  him,  it  must  be  held  binding  upon  the  company. 

IG.  It  seems  to  be  considered  that  railway  companies  may  be 
responsible  where  injury  to  passengers,  or  others  rightfully  there, 
occurs  in  consequence,  for  allowing  a  dangerous  animal  to  re- 
main about  their  stations  after  they  have  suHllcicnt  knowlcdLro 
of  its  *  vicious  i)ropensities.  But  the  fact  that  a  stray  dog  had 
torn  the  dress  of  one  ])assenger  a  few  hours  before,  and  attacked 
a  cat  soon  after,  and  been  driven  from  the  station  by  the  servants 
of  the  company,  and  soon  after  returned  and  bit  the  itlaintiiV,  will 
not  be  suflicient  to  render  the  company  responsible. ^'•'  l>ut  where 
injury  occurred  from  the  bite  of  a  dog  kept  about  the  staliles  of  a 
horse  railway  company,  by  a  person  employed  by  them  and  having 
charge  of  their  stables,  and  with  the  knowledge  and  imjdied  assent 
of  their  superintendent,  it  Avas  held  that  the  com|)any  might  i)roj>- 
crly  be  regarded  as  the  keeper  of  the  dog,  and  responsible  under 
the  statute  for  double  the  danuiges  sustained  by  the  bile.''^ 

17.  The  general  uuuiager  of  a  railway  has  authority  to  oind  the 
company  to  pay  for  medical  attendance  on  a  servant  of  the  coin- 
l)any,  injured  by  an  accident  in  (lu'ir  employment.-' 

1^  Smith  I'.  Great  Eastern  Railway  Co.,  Law  Hop.  2  V.  P.  1. 

-0  Barrett  v.  IMalden  &  Mehose  Railway  Co.,  3  Allen.  101. 

21  Walker  v.  Great  AVestern  Railway  Co.,  Law  Rop.  2  Exch.  22S;  8.  P. 
Toledo,  Wabash,  &  Western  Railroad  Co.  v.  Rodriguos,  47  111.  ISS.  See  infra, 
§  182,  pi.  4,  note  5. 

[•517] 


554 


LIABILITY    FOR   CONTRACTORS,   AGENTS,    ETC.        [PART   VI. 


18.  But  the  general  superintendent,  manager,  or  managing 
director,  has  no  authority  to  bind  the  company  to  a  secret  and 
fraudulent  diversion  of  the  funds  or  earnings  of  the  company  by 
any  of  the  subordinate  employes  or  servants.^ 


SECTION    III. 

Inj^iries  to  Servants  ly  neglect  of  Fellow-Servants,  and  use  of 

Machinery. 


\.  In  general,  company  not  liable  to  ser- 
vant for  negligence  of  fellow-ser- 
vant. 

2.  Otliervvise  if  at  fault  in  employing  un- 

suitable servants  or  macliinery. 

3.  Not   liable  for  deficiency  of  help   or 

for  defect  in  fence,  whereby  cattle 
come  on  road  and  throw  engine 
from  track. 

4.  Quare,  whether  the  rule  applies  to  ser- 

vants of  different  grades. 
n.  (g)  Fellow-servants  within  the  mean- 
ing of  the  rule,  who  are. 

5.  Principal  rule  not  adopted   in   some 

states,  nor  in  Scotland. 

G.  Ship-owner  does  not  impliedly  con- 
tract with  seaman  that  siiip  is  sea- 
worthy. 

7.  Rule  does  not  apply  where  ser%'ant  has 


no  connection  with  the  particular 
work. 
8-10.  Cases,  English  and  American,  il- 
lustrating the  accepted  doctrine. 

11.  Company  may  show  in  excuse,  that 

the  damage  accrued  through  disre- 
gard by  fellow-servant  of  settled 
rules. 

12.  Servants  of  one  company,  not  fel- 

low-servants with  those  of  anotlier 
company,  using  the  same  station 
where  the  injury  occurred. 

13.  Injury  caused  by  intoxication  of  fel- 

low-servant. Proof  of  knowledge 
by  company,  that  servant  is  an 
habitual  drunkard,  tends  to  show 
culpable  neglect. 

14.  Employer  liable  where  his  own  negli- 

gence concurs  with  tliat  of  fellow- 
servant. 


§  131.  1.  It  seems  to  be  now  perfectly  well  settled  in  England, 
and  mostly  in  this  countr}-,  that  a  servant,  («)  who  is  injured  by 

^-  Concord  Railroad  Co.  v.  Clougli,  49  X.  H.  2'u.  The  facts  in  this  case 
were  that  the  rules  established  by  the  directors  required  the  conductors  to  add 
ten  cents  to  the  fare  whenever  it  was  paid  in  the  cars.  The  defendant,  a  con- 
ductor, received  fares  at  a  less  amount  than  the  rules  required,  and  did  not 
enter  them  on  the  daily  way-l)ills  filed  in  the  ticket-master's  oflice,  but 
expended  the  money  in  the  purchase  of  tickets  at  the  ticket-offices,  and  after 
punching  them,  to  indicate  that  they  had  been  taken  of  passengers,  in  the 

(n)  As  to  -who  are  servants,  see  road  Co.,  3  Thomp.  &  C.  288;  Sloan 
Bradley  v.   Xew  York  Central  Rail-     v.  Central  Iowa  Railroad  Co.,  11  Am. 

[*517] 


§  131.] 


INJURIES    BY    FELLOW-SERVANTS. 


555 


the  *  negligence  or  misconduct  of  his  fellow-servant^  can  maintain 
no  action  against  the  master  for  such  injury.^  (i) 

ordinary  course  of  business,  returned  tiieui  with  liis  other  tickets  taken  up. 
This  was  done  by  the  consent  of  the  superintendent,  but  purposely  kept  from 
the  knowledge  of  the  directors.  lie  also,  by  purchasing  joint  tickets  uf  other 
roads  and  selling  them  to  passengers,  deprived  the  company  of  benefits  ari>ing 
from  the  sale  of  its  own  tickets,  to  a  large  amount.  'Jhis  also  wa,s  done  by 
consent  of  the  superintendent,  but  without  the  knowledge  of  the  directors. 
The  conductor  was  held  responsible. 

^  Priestly  v.  Fowler,  3  M.  &  W.  1 ;  Hutchinson  v.  York,  Newcastle,  &  Ber- 
wick Railway  Co.,  5  Exch.  313;  Wigmore  r.  Jay,  5  Exch.  3.">4;  .'^kip  v.  Eastern 
Counties  Railway  Co.,  21  Eng.  L.  &  Eq.  30G;  Farwell  i-.  Boston  &  Worcester 
Railroad  Co.,  4  Met.  49;  Murray  r.  South  Carolina  Railroad  Co.,  1  McMul. 
385;  Browu  u.  Maxwell,  G  Hill,  X.  Y.  592;  Coon  v.  Syracuse  &  I'tica  Rail- 
road Co.,  G  Barb.  231;  s.  c.  1  Seld.  492;  Hayes  v.  Western  Railroad  Co., 
3  Cush.  270;  Sherman  v.  Rochester  &  Syracuse  Railroad  Co.,  15  Barb.  574; 
McMillan  v.  Railroad  Co.,  20  Barb.  449;  Ilonner  v.  Illinois  Central  Railroad 
Co.,  15  111.  550;  Ryan  v.  Cumberland  Valley  Railroad  Co.,  23  Renn.  St.  3S4; 
King  c.  Boston  &  Worcester  Railroad  Co.,  9  Cush.  112;  Madison  &  Indian- 
apolis Railroad  v.  Bacon,  G  Ind.  205.  The  same  rule  prevails  in  Virginia. 
Ilawley  c.  Baltimore  &  Ohio  Railroad  Co.,  G  Am.  Law  Reg.  352. 


&  Eng.  Railw.  Cas.  145.  A  mere 
volunteer,  one,  e.  g.,  who  gets  upon 
a  train  and  applies  a  brake  to  stop  it, 
is  not.  Everhart  v.  Terre  Haute  &  In- 
dianapolis Railroad  Co.,  78  Ind.  292. 
But  as  to  who  may  be  deemed  a  mere 
volunteer,  see  Wright  v.  London  & 
Northwestern  Railway  Co  ,  Law  Rep. 
1  Q.  B.  252,  where  a  consignee  wa.s 
injured  while  helping  to  move  a  car  so 
that  he  could  get  at  his  freight,  and 
was  held  not  barred  of  his  action. 
See  also  Blair  i*.  Grand  Rapids  &  In- 
diana Railroad  Co.,  24  Am.  &  Eng. 
Railw.  Cas.  430,  where  a  stranger 
stopping  a  train  at  request  of  conduc- 
tor of  another  train,  and  injured  in 
attempting  to  get  on  tlie  train  while 
it  was  moving,  was  held  a  volunteer, 
and  the  company  was  held  not  liable. 
An  infant,  unless  of  tender  years, 
is  bound  by  the  rules  which  govern 
in  case  of  an  adult.  Houston  &  Great 
Xorthern  Railroad  Co.  r-  ^liller,  51 
Tex.  270.     But  see  Hamilton  r.  Gal- 


veston, Harrisburg,  &  San  Antonio 
Railway  Co.,  54  Tex.  550,  where  it 
was  held  that  the  company  was  lia- 
ble to  the  mother  of  an  infant  of  fif- 
teen injured  through  the  negligence 
of  a  fellow-servant. 

Whether  the  company  can  relieve 
itself  from  all  liability  to  servants  for 
pensonal  injuries,  however  cau.sed,  see 
Darrigan  t'.  New  York  &  New  Eng- 
land Railroad  Co.,  52  Conn.  L'85. 

There  is  no  general  liability  on  the 
part  of  the  company  to  pay  f«)r  surgi- 
cal aid,  but  it  may  be  proper  in  caj»e 
of  emergency;  and  wliore  a  trainman 
is  injured  at  a  distance  from  tht*  prin- 
cipal office  of  the  comp.iny.  and  there 
is  urgent  need  of  a  surgeon,  tlie  con- 
ductor, if  the  highest  agent  of  the 
company  on  the  ground,  ni.iy  bind 
the  company  to  j^ay  for  one.  Terre 
Haute  &  Inilianaix>lis  Railroad  Co.  r. 
Mc .Murray,  OS  Ind.  3.">8. 

(/;)  Totten  r.  Pennsylvani.i  Rail- 
road Co.,  11  Fed.  Rej..  501;  lirabbits 

[•518] 


556 


LIABILITY   FOR    CONTRACTORS,   AGENTS,    ETC.        [PART   VI. 


2.  But  it  seems  to  be  conceded,  that  if  there  be  any  fault  in 
the  selection  of  the  other  servants,  or  in  continuing  them  in  their 
places  after  they  have  proved  incompetent,  perhaps,  or  in  the 
employing  unsafe  machinery,  tlie  master  will  be  answerable  for 
all  injury  to  his  servants,  in  consequence.^  (c) 

2  Shaw,  C.  J.,  4  Met.  49,  o7;  Keegau  v.  Western  Railroad  Co.,  4  Seld. 
175.     But  it  makes  no  difference  in  regard  to  the  liability  of  the  company  that 


xu  Chicago  &  Northwestern  Railway 
Co.,  38  Wis.  2S9;  Michigan  Central 
Railroad  Co.  v.  Dolan,  32  Mich.  510; 
Houston  &  Great  Northern  Railroad 
Co.  V.  Miller,  51  Tex.  270;  Dobbin  v. 
Richmond  &  Danville  Railroad  Co., 
81  N.  C.  44G;  Hogan  v.  Central  Paci- 
fic Railroad  Co.,  49  Cal.  128;  Kansas 
Pacific  Railroad  Co.  v.  Salmon,  11  Kan. 
83;  Gartland  v.  Toledo,  Wabash,  & 
Western  Railroad  Co. ,  67  111.  498.  And 
see  Hough  v.  Texas  &  Pacific  Rail- 
way Co.,  100  U.  S.  213.  This  general 
rule  involves  no  federal  question  and 
is  not  open  to  denial  in  the  federal 
courts  more  than  elsewhere.  Dillon 
t".  Union  Pacific  Railroad  Co.,  3  Dil. 
319.  But  it  applies  only  where  the 
servants  are  in  the  same  employment, 
i.  e.,  in  the  same  department  of  duty. 
King  V.  Ohio  Railroad  Co.,  14  Fed. 
Rep.  277.  Or  in  the  same  enterprise 
under  the  same  master.  New  Orleans 
Railroad  Co.  v.  Hughes,  49  Miss.  258. 
Or  an  enterprise  in  which  the  same  in- 
strumentalities are  employed.  Valtez 
V.  Ohio  &  Mississippi  Railroad  Co.,  85 
111.  500.  And  see  Mobile  &  Montgom- 
ery Railroad  Co.  v.  Smith,  50  Ala.  245. 
It  does  not  apply  where  the  servant 
whose  act  is  complained  of  stands 
toward  the  servant  injured  in  the  rela- 
tion of  a  superior  or  vice-principal. 
Hough  V.  Texas  &  Pacific  Railway  Co., 
supra;  Miller  v.  Union  Pacific  Railway 
Co.,  17  Fed.  Rep.  G7;  Gravelle  v.  Min- 
neapolis &  St.  Louis  Railway  Co.,  11 
Fed.  Rep.  569;  Cowles  v.  Richmond 

[*518] 


&  Danville  Railroad  Co.,  84  N.  C. 
309;  Ragsdale  v.  Memphis  &  Charles- 
ton Railroad  Co.,  3  Baxter,  Tenn.  426. 
And  if  the  negligence  of  the  company 
has  a  share  in  causing  the  injury,  con- 
tributory negligence  of  a  fellow-servant 
will  not  relieve  the  company  from  lia- 
bility. Grand  Trunk  Railway  Co. 
V.  Cummings,  166  U.  S.  700;  Elmer 
V.  Locke,  135  Mass.  575.  And  see 
Thompson  v.  Chicago,  Milwaukee,  & 
St.  Paul  Railway  Co.,  18  Fed.  Rep. 
2-'59.  And  on  the  whole,  the  rule  of 
Priestly  v.  Fowler  (supra,  note  1), 
would  seem  to  be  becoming  gradually 
modified,  a  greater  number  of  local 
superintendents,  heads  of  dejiart- 
ments,  kc,  being  held  to  stand  in  the 
place  of  the  principal,  tlius  more  fully 
meeting  the  ends  of  justice.  See  also 
Nashville,  Chattanooga,  &  St.  Louis 
Railroad  Co.  v.  Wheless,  10  Lea, 
Tenn.  741,  where  it  is  held  that  the 
master  is  liable  where  one  servant  is 
the  immediate  superior  of  the  other. 
And  see  Gilmore  v.  Northern  Pacific 
Railroad  Co.,  15  Am.  &  Eng.  Railw. 
Cas.  304;  Chicago  &  Alton  Railroad 
Co.  V.  INIay,  15  Am.  &  Eng.  Railw. 
Cas.  320;  Hannibal  &  St.  Joseph 
Railroad  Co.  v.  Fox,  lb.  325;  Mis- 
souri Pacific  Railroad  Co.  v.  Watts, 
63  Tex.  549;  Hake  v.  St.  Louis, 
Keokuk,  &  Northwestern  Railroad 
Co.,  25  Am.  &  Eng.  Railw.  Cas.  463. 
See  further  the  cases  collected,  infra, 
note  (fj). 

(r)  ^Mobile    &   Montgomery   Rail- 


j5   lol.]  INJUUIRS    UY    FKLLOW-SKRVANTS,  5o7 

*  In  Frazicr  v.  The   Pennsylvania   Railway  Company,'  it  was 
held,  that  if  the  company  knowingly  or  carelessly  emjjloy  a  rash 

the  person  came  into  the  service  voluntarily,  to  assist  the  servants  of  the  com- 
pany in  a  particular  emei-geucy,  and  was  killed  by  the  negligence  of  some  of 
the  servants.  Degg  v.  Midland  Railway  Co.,  1  II.  &  N.  77;J.  It  is  .said,  Mc- 
Millan V.  Saratoga  iSc  Washington  Kailroad  Co.,  "JU  Harb.  119,  that  the  servant, 
in  order  to  entitle  hin)self  to  recover  for  injuries  from  defective  machinery, 
must  prove  actual  notice  of  such  defects  to  the  master.  But  culpable  negli- 
gence is  sufficient,  undoubtedly,  and  that  is  such  as,  under  the  circumstances, 
a  prudent  man  would  not  be  guilty  of.  I»Ji'n,  note  10,  §  131 ;  Harper  v.  Indi- 
anapolis &  St.  Louis  Railroad  Co.,  47  Mo.  567;  Columbus  &  Indianapolis  Cen- 
tral Railroad  Co.  i;.  Arnold,  31  Ind.  174;  Illinois  Central  Railroad  Co.  r.  Jewell, 
46  111.  99.  The  case  47  ]Mo.  .067,  was  where  the  engineer  was  allowed  tf)  let 
the  fireman  take  his  place  temporarily,  when  he  considered  him  competent, 
and  he  proved  incompetent,  and  the  company  was  held  responsible.  IJut  if 
the  servant  knows  of  the  defects,  and  does  not  inform  the  master,  or  if  the 
defects  are  known  to  both  master  and  servant,  and  the  servant  makes  no  ob- 
jection to  continue  the  service,  he  probably  cannot  recover  of  the  master  for 
any  damage  in  consequence.  But  if  the  master  knows  of  the  defect,  and 
directs  the  .servant  to  continue  the  service,  in  a  prescribed  manner,  he  is  re- 
sponsible for  the  consequences.  Mellors  v.  Shaw,  7  Jur.  n.  s.  845.  Where 
the  defendants  were  joint  owners  and  workers  of  a  coal-mine,  and  one  of  the 
employes  was  injured  by  a  defect  in  the  machinery,  and  it  appeared  that  one 

road  Co.  v.  Smith,  59  Ala.  215;  known  of  the  servant's  incompetency. 
Houston  &  Texas  Central  Railroad  Blake  v.  Maine  Central  Railroail  Co., 
Co.  I'.  Myers,  55  Tex.  110;  Pennsyl-  70  Me.  00;  Ross  v.  Chicago,  Milwau- 
vania  Railroad  Co.  v.  Roney,  S9  lud.  kee,  &  St.  Paid  Railway  Co.,  2  Mc- 
453;  Ohio  &  Mississippi  Railroad  Co.  Crary,  235.  Notice  to  master  me- 
i'.  Collarn,  73  Ind.  261 ;  New  Orleans,  chanic  who  employed  engine-drivers 
Jackson,  &c.  Railroad  Co.  v.  Hughes,  held  notice  to  company  of  engine- 
49  !Miss.  258;  Smith  v.  Potter,  46  driver's  incompetency.  Ohio  &  ^lis- 
^lich.  258.  The  care  which  the  com-  sissippi  Railroad  Co.  v.  Collarn,  73 
pany  should  exercise  in  the  selection  Ind.  201.  So  of  notice  to  general 
of  employes  is  such  as  is  fairly  com-  agent  charged  with  duty  of  employ- 
niensurate  with  the  perils  likely  to  ing.  Baulec  v.  New  York  &  Harlem 
result  from  negligence  or  incompe-  Railroad  Co.,  59  N.  Y.  356.  So  of 
tency.  Wabash  Railway  Co.  v.  Mc-  notice  to  superintendent  having  gene- 
Daniels,  107  U.  S.  454.  Ordinary  ral  power  of  management.  Hunting- 
care  is  not  sufficient.  Due  care  is  don  &  Broad  Top  Mountain  Railroad 
necessary.  Alabama  &  Florida  Rail-  Co.  v.  Decker,  82  Penn.  St.  119.  So 
road  Co.  v.  Waller,  48  Ala.  459.  To  of  notice  to  road-master  of  incompe- 
render  the  company  liable  it  should  tency  of  .section  foreman.  McDormott 
appear  that  it  knew  or  should  have  r.   Hannibal   &  St  Joseph  Railroad 


3  38  Penn.  St.  104;  Wright  v.  New  York  Central  Railroad  Co.,  23  Barb. 
80;  Carle  v.  Bangor  &  Piscataquis  Canal  &  Railroad  Co.,  43  Me.  269. 

[•olOJ 


558 


LIAIJILITY    FOR   CONTRACTORS,    AGENTS,   ETC.        [I'ART    VI. 


or  incompetent  conductor,  whereby  the  brakcman  on  the  train  is 
injured,  the  company  are  responsible  for  the  injury ;   that  the  act 

of  the  defendants  personally  interfered  in  the  management  of  the  colliery, 
and  the  jury  found  that  defendant  guilty  of  personal  negligence,  it  was  held 
sufficient  to  implicate  both  defendants,  as  they  must  be  presumed  to  have 
known  that  improper  niachinery  was  being  emploj-ed.  Ashvvorth  v.  Stanwix, 
30  Law  J.  Q.  B.  183.  But  see  Wright  v.  New  York  Central  Railroad  Co., 
28  Barb.  80;  infra,  note  3,  20  ;  Morgan  r.  Vale  of  Neath  Railway  Co.,  Law  Rep. 
1  Q.  B.  149.  Tiie  company  was  held  responsible  for  an  injury  to  one  of  its 
servants  caused  by  want  of  repair  in  the  road-bed.  Snow  v.  Housatonic  Rail- 
road Co.,  8  Allen,  441.  But  the  company  cannot  be  held  as  guarantors  to  its 
servants  that  the  structures  continue  in  proper  condition.  If  originally  prop- 
erly built  and  properly  inspected  from  time  to  time,  it  is  all  that  can  be  re- 
quired. As,  for  instance,  if  a  servant  is  killed  by  the  falling  of  a  bridge, 
properly  constructed,  and  carefully  inspected  the  day  before,  the  company  is 
not  responsible.  Faulkner  v.  Erie  Railway  Co.,  49  Barb.  324;  Warner  r. 
Same,  8  Am.  Law-  Reg.  n.  s.  209.  The  general  doctrine  of  the  text  is  main- 
tained and  illustrated  in  Harrison  v.  Central  Railroad  Co.,  2  Vroom,  293; 
Weger  ?'.  Pennsylvania  Railroad  Co.,  5.5  Penn.  St.  460;  Shauck  v.  Northern  Cen- 
tral Railroad  Co.,  25  Md.  462;  Pittsburg,  Fort  Wayne,  &  Chicago  Railroad 
Co.  V.  Devinney,  17  Ohio  St.  197;  AVarner  v.  Erie  Railway  Co.,  39  N.  Y.  468. 
And  if  the  master  uses  reasonable  precautions  and  efforts  to  procure  safe  and 
skilful  servants,  but,  without  fault,  happens  to  have  one  in  his  employ  through 


Co.,  73  jNIo.  516.  Notice  to  caller  of 
conductors  of  a  conductor's  special 
temporary  incompetency,  held  not  no- 
tice to  the  company.  Michigan  Cen- 
tral Railroad  Co.  i\  Dolan,  32  Mich. 
510.  If  the  servant  is  so  grossly  and 
notoriously  unfit  that  it  is  negligence 
not  to  know  his  unfitness,  the  law  pre- 
sumes notice.  Chicago,  Rock  Island, 
&  Pacific  Railroad  Co.  v.  Doyle,  18 
Kan.  58.  But  if  the  fellow-servant 
having  full  notice  of  such  incompe- 
tency continues  in  the  service  without 
effort  at  the  correction  of  the  same,  he 
is  deemed  to  acquiesce,  and  waives  his 
right  against  the  company.  Lake 
Shore  &  ^Michigan  Southern  Railway 
Co.  V.  Knittal,  33  Ohio  St.  4GS.  But 
see  Hoey  v.  Dublin  &  Belfast  Junc- 
tion Railway  Co.,  5  Ir.  Com.  Law,  206, 
where  it  is  said  to  be  but  evidence  of 
contributory  negligence  for  the  jury. 
The  rule  that  a  servant  takes  the  rii-k 
[*519] 


of  the  negligence  of  fellow-servants  has 
no  application  in  case  the  injury  is 
caused  by  the  negligence  of  a  servant 
of  a  connecting  line.  Philadelphia, 
Wilmington,  &  Baltimore  Railroad 
Co.  V.  Maryland,  58  Md.  372. 

The  principles  which  govern  in 
cases  of  injury  resulting  from  defects 
in  roadway,  machinerj',  &c.,  are  to 
some  extent  the  same  which  govern 
in  cases  of  injury  from  negligence  of 
fellow-servants.  Thus  the  company 
is  bound  to  a  certain  degree  of  care 
to  provide  roadway,  machinery,  &c., 
which  the  employe  may  safely  use. 
The  company  is  not  liable  merely 
because  contrivances  used  in  operat- 
ing the  road  are  dangerous.  Gould 
V.  Chicago,  Burlington,  &  Quincy 
Railroad  Co.,  22  Am.  &  Eng.  Railw. 
Cas.  289.  But  where  the  service  is 
dangerous  the  company  should  use 
all  reasonable  and  uecessarv  means  to 


§   l;Jl.]  INJLIULS    DY    rKLLOW-SKRVANTS.  659 

of  the  agent  of  (he  company  having  charge  of  employing  such 
agents  or  servants,  and  of  dismissing  them  for  incompetency,  is 

whose  incompetency  damage  occurs  to  a  fellow-servant,  tlie  master  is  not  lia- 
ble. Tarrant  v.  Webb,  18  C.  B.  797.  In  Dynen  v.  Leach,  20  Law  J.  n.  «. 
Exch.  221,  it  was  decided,  that  where  an  injury  happens  to  a  servant  in  the 
course  of  his  employment  in  the  use  of  machinery,  of  the  nnture  of  which  he 
is  as  much  aware  as  his  master,  and  the  use  of  wiiich  is  tlie  proximate  cause 
of  tlie  injury,  the  servant  cannot  recover,  nor,  if  death  ensues,  can  his  jierso- 
nal  representative  recover  of  the  master,  there  being  no  evidence  of  any  per- 
sonal negligence  on  his  part  conducing  to  the  injury.  Nor  does  it  vary  the 
case  that  the  master  has  in  use  in  his  works  an  engine,  or  machine,  less  safe 
than  some  other  which  is  in  general  use,  or  that  there  was  another  and  safer 
mode  of  doing  the  business,  which  had  been  discarded  by  his  orders.  And  in 
Assop  L'.  Yates,  2  II.  &  X.  7G8,  it  was  held,  that  if  the  servant  knew  of  the 
exposure,  and  consented  to  continue  the  service,  and  suffered  damage,  he 
could  not  recover  of  the  master  for  any  negligence  which  might  have  contrib- 
uted to  the  result.  And  if  one  servant  knows  of  the  incompetency  of  another 
fellow-servant,  and  gives  no  information  to  the  employer,  but  continues  in 
the  service,  he  cannot  recover  for  any  injury  sustained  through  such  incomjie- 
toncy.  Davis  v.  Detroit  &  Miciiigan  Railroad  Co.,  20  !Mich.  lU.j.  But  if  one 
of  the  servants  of  the  company  is  injured  in  coupling  cars,  through  defect  in 
the  apparatus,  which  was  known  to  the  superintendent,  and  about  being  laid 
aside  on  that  account,  but  not  known  to  the  servant,  and  without  fault  on  his 
part  or  that  of  any  fellow-servant,  the  company  is  liable.  Gibson  v.  Tacific 
Railroad  Co.,  4G  Mo.  163.  And  where  a  boy,  fourteen  years  of  age,  is  set  to 
tend  a  machine,  in  dangerous  proximity  to  another  machine,  without  being 
cautioned  against  the  exposure,  and  he  is  in  conseciueuce  injured  without  any 
more  incantion  on  his  part  than  might  naturally  be  expected  of  one  in  his 
position  and  of  his  age,  the  employer  will  be  liable;  but  if  the  servant  under- 
stand the  peril,  and  voluntarily  incur  it,  he  cannot  recover.  Coomb  i*.  New  Bed- 
ford Cordage  Co.,  102  ^lass.  572.  A  fireman  injured  by  a  dt*ft;ct  in  the  engine, 
which  had  been  brought  to  the  knowledge  of  the  mechanics  employed  in  repair- 
ing such  engines,  but  which  they  had  failed  to  remedy  in  repairing  the  same, 
was  held  not  entitled  to  recover  of  the  company,  without  showing  notice  of 
the  defect  to  some  agent  authorized  to  receive  such  notice  on  behalf  of  the 
company,  and  want  of  diligence  in  repairing  the  defect.  Mobile  &  Ohio 
Railroad  Co.  r.  Thomas,  42  Ala.  072. 

protect  the  employe.  ]\Ii.ssouii  racific  to  the  servant  while  defects  in  the  other 
Railroad  Co.  v.  Watts,  G:}  Tex.  olU.  are  not.  However  that  may  Im?,  the 
Upon  the  cases,  however,  it  would  seem  cases  seem  to  hold  companies  to  the  use 
that  the  company  is  held  to  less  care  only  of  reasonable  and  ordinary  care 
and  diligence  in  providing  safe  road-  to  provide  safe  machinery,  &c.  War. 
way,  machinery,  &c.,  than  in  providing  ner  r.  Western  North  Carolina  Rail- 
careful  fellow-servants,  —  for  no  very  road  Co.,  25  Am.  &  Eng.  Kaihv.  Ca.s. 
obvious  reason,  unless  it  is  a  reason  that  432;  Jones  v.  New  York  Central  & 
defects  in  the  one  are  generally  vi.sible  Hudson  River  Railroad  Co..  22  Hun, 

[•olDJ 


560 


LIABILITY   FOR   COXTRACTORS,   AGENTS,   ETC.        [PART   YI. 


the  act  of  the  company  ;  (dZ)  but  the  company  are  not  responsible 
for  such  injury,  unless  they  were  in  fault  in  employing  or  con- 

284 ;  Palmer  v.  Denver  &  Rio  Grande 
Railway  Co.,  3  McCrary,  G^Jo;  Wedge- 
wood  V.  Cliicago  &  Northwestern  Rail- 
way Co.,  44  Wis.  44;  Missouri  Pacific 


Railroad  Co.  v.  Lyde,  57  Tex.  505; 
Muldowney  v.  Illinois  Central  Rail- 
road Co.,  36  Iowa,  4G2;  Houston  & 
Texas  Central  Railway  Co.  v.  Dun- 
ham, 49  Tex.  181.  See  Tinney  v. 
Boston  &  Albany  Railroad  Co.,  62 
Barb.  218.  Not  to  the  exercise  of 
extraordinary  care.  Cooper  v.  Cen- 
tral Railroad  Co.,  44  Iowa,  134.  Nor 
to  the  duties  which  devolve  upon  in- 
surers. Wabash,  St.  Louis,  &  Pacific 
Railway  Co.  v.  Fenton,  12  Brad.  417; 
Michigan  Central  Railroad  Co.  i'. 
Smithson,  45  Mich.  212;  Lake  Shore 
&  IMichigan  Southern  Railway  Co.  v. 
McCormick,  74  lud.  440.  Nor  is  the 
company  bound  to  make  use  of  only 
the  safest  known  appliances.  Lake 
Shore  &  ]\Iichigan  Southern  Railway 
Co.  V.  McCormick,  lb. ;  Botsford  v. 
Michigan  Central  Railroad  Co.,  33 
Mich.  256.  And  see  Toledo,  Wabash, 
&  Western  Railway  Co.  v.  Asbury, 
84  111.  429.  But  the  company  is 
bound  not  only  to  furnish  proper  ma- 
chinery, &c.,  but  to  keep  it  in  proper 
condition.  Brann  v.  Chicago,  Rock 
Island,  &  Pacific  Railroad  Co.,  53 
Iowa,  595;  Kain  v.  Smith,  80  N.  Y. 
458.  And  in  such  condition  as  from  the 
nature  of  the  business  the  servant  has 
a  right  to  expect.  Totten  v.  Penn- 
sylvania Railroad  Co.,  11  Fed.  Rep. 
564;  Atchison,  Topeka,  &  Santa  Fe 
Railroad  Co.  v.  Holt,  29  Kan.  149. 
And  upon  notice  of  any  defect,  to 
make  proper  repairs  or  changes.    Gage 


V.  Delaware,  Lackawanna,  &  Western 
Railroad  Co.,  14  Hun,  446;  Kidwell 
V.  Houston  &  Great  Northern  Railway 
Co.,  3  Woods,  313.  And  mere  lack  of 
notice  will  not  excuse  it,  if  such  lack 
is  due  to  want  of  care.  Columbus, 
Chicago,  &  Indiana  Central  Railway 
Co.  V.  Troesch,  G8  111.  515.  Notice 
to  a  foreman  in  a  repair  shop  may  be 
notice  to  the  company.  Brabbits  r. 
Chicago  &  Northwestern  Railway  Co  , 
38  Wis.  289.  But  if  a  servant  con- 
tinue in  his  employment  knowing  or 
having  the  means  of  knowing  of  defects, 
&c.,  he  is  presumed  to  assume  all  con- 
sequences. Houston  &  Texas  Central 
Railroad  Co.  v.  Myers,  55  Tex.  110; 
Umback  v.  Lake  Shore  &  Michigan 
Southern  Railway  Co.,  S3  Ind.  191; 
Baker  r.  Western  &  Atlantic  Railroad 
Co.,  55  Ga.  133;  Price  v.  Hannibal  & 
St.  Joseph  Railroad  Co. ,  77  Mo.  508. 
And  see  Jackson  v.  Kansas  City,  Law- 
rence, &  Southern  Kansas  Railroad 
Co.,  15  Am.  &  Eng.  Raihv.  Cas.  178. 
Unless  he  has  been  induced  Ivy  the  com- 
pany to  believe  the  defects  will  be  rem- 
edied. Illinois  Central  Railroad  Co. 
V.  Jones,  11  Brad.  324;  Texas  & 
Pacific  Railway  Co.  v.  Kane,  15  Am. 
&  Eng.  Railw.  Cas.  218.  But  if  he 
sees  that  the  defects  have  not  been 
remedied,  but  still  continues,  he  takes 
the  risk  again.  Crutchfield  v.  Rich- 
mond &  Danville  Railroad  Co.,  78 
N.  C.  300.  If,  however,  the  defects  are 
the  result  of  the  want  of  ordinary  care, 
and  are  not  so  serious  that  the  servant 
may  not  use  the  machinery  with  care, 
and  the  company  requests  him  to  use 
it,  and  he  uses  it  with  care,  the  com- 


{d)  Tyson  r.  South  &  North  Ala-  58  Tex.  276.    And  see  Mobile  &  Mont- 

bama    Railroad   Co.,    61    Ala.    5.54;  goraery  Railroad  Co.  t'.  Smith,  59  Ala. 

Texas  M.  Railroad  Co.  v.  Whitmore,  245. 
[*510] 


§  131.] 


INJURIES    nY    FELLOW-SERVANTS. 


JCl 


tinning  the  condnctor  in  tlioir  service ;  lliat  the  cliaractcr  of  such 
conductor  for  skill  and  faithfulness  may  he  shown  by  general 
rei)utation.((^)  'J'hc  master  is  not  in  general  hound  to  use  any 
special  precautions  to  secure  the  servant  from  injury  in  regard  to 
matters  equally  within  the  knowledge  of  hoth.*  l]ut  the  master 
is  liable  for  all  injuries  accruing  to  his  servants  imm  his  own 
personal  negligence  ;  and  this  may  consist  in  pers(jnal  interfer- 
ence in  the  particular  matter  causing  the  injury,  or  by  negliirently 
retaining  incompetent  servants,  producing  the  injury.^  But  a 
railway  company  is  liable  in  damages  for  an  injury  resulting  to 
any  person  lawfully  using  its  road,  from  its  neglect  to  introduce 
any  improvement  in  its  machinery  or  apparatus,  which  is  known 
*  to  have  been  tested,  and  found  materially  to  contribute  to  safety, 
and  the  adoption  of  which  is  within  its  power  so  as  to  be  reason- 
ably practicable.'^  But  in  another  case,'  in  an  action  by  a  servant 
against  his  master  for  injuries  sustained  by  the  explosion  of  a 
steam-boiler  used  in  his  business,  the  plaintiff  introduced  evidence 

*  Seymour  v.  Maddox,  IG  Q.  B.  026. 

6  Onnoiid  i;.  Holland,  1  Ellis,  B.  &  E.  102. 

«  Smith  V.  New  York  &  Harlem  Railroad  Co.,  19  N.  Y.  127. 

'  Cazyer  v.  Taylor,  10  Gray,  274. 


pany  will  be  liable.  Kansas  City,  St. 
Joseph,  &  Council  Bluffs  Kaihoad  Co. 
V.  Flynn,  78  Mo.  195.  And  see  East 
Tennessee,  Virginia,  &  Georgia  Rail- 
road Co.  V.  Duffield,  12  Lea  Tenn. 
03;  Sioux  City  &  Pacific  Railroad  Co. 
V.  Finlayson,  18  Am.  &  Eng.  Railw. 
Cas.  08.  Nor  can  a  servant  recover 
for  an  injury  resulting  from  a  risk 
usual  to  the  business.  Little  Rock  & 
Fort  Smith  Railroad  Co.  v.  DufTey, 
35  Ark.  002;  Woodworth  v.  St.  Paul, 
Miiuieapoli.s,  &  ^lanitoba  Railway 
Co.,  18  Fed.  Rep.  282  ,  Pennsylvania 
Railroad  Co.  v.  Wachter,  GO  >id.  .'.95. 
Or  in  consequence  of  rides  or  methods 
with  knowledge  of  which  he  engaged. 
Kelley  v.  Chicago,  Milwaukee,  &  St. 
Paul  Railway  Co.,  53  Wis.  74.  And 
it  will  make  no  difference  that  (iiere 
was  a  safer  way  of  doing  the  business. 
Naylor  v.  Chicago  &  Northwestern 
VOL.  i.  —  rs 


Railway  Co.,  53  Wi.i.  601.  Nor  can 
the  servant  recover  where  he  lias  been 
guilty  of  contributory  negligence,  as 
by  attempting  to  board  a  moving 
train.  Dowell  r.  Vicksburg  &  Meri- 
dian Railroad  Co.,  01  Miss.  51f>.  Or 
by  shovelling  under  a  bank  of  earth 
that  it  is  likely  to  fall,  knowing  that 
it  is  likely.  Simonds  v.  Chicago  & 
Tomah  Railroad  Co.,  110  III.  3!0; 
Rasmus.son  r.  Ciiicago,  Uock  Isl.ind, 
&  Pacific  Railroad  Co..  18  Am.  &  Eng. 
Railw.  Cas.  51.  It  is  not  negligence 
per  sc  to  walk  along  a  moving  train  of 
flat  cars.  Atchison,  To[H'ka,  &  .•^anta 
Fe  Railroad  Co.  r.  McCandlis.s  22  Am. 
&  Eng.  Railw.  Cas.  2.03. 

(e)  As  to  proof  of  nf^gligenec  on 
other  occasions,  see  Michigan  Central 
Railroad  Co.  v.  (Jilbert,  10  Mich.  176; 
Bauloc  V.  New  York  &  Harlem  Rail- 
road Co.,  48  How.  Pr.  390. 

[•520] 


662  LIABILITY    FOR   CONTRACTORS,   AGENTS,   ETC.       [PART   VI. 

without  objection,  that  there  was  no  such  fusible  safety-phig  on 
the  boiler  as  was  required  by  statute ;  and  the  presiding  judge 
excluded  evidence  of  a  custom  among  engineers  not  to  use  such  a 
plug,  and  instructed  the  jury  that  if  the  defendant  knowingly 
used  the  boiler  without  the  plug,  and  the  want  of  it  caused  the 
accident,  the  plaintiff  was  entitled  to  recover,  and  refused  to  in- 
struct them  that  if  the  defendant  used  all  the  appliances  for 
safety  that  were  ordinarily  used  in  such  establishments,  he  was 
not  liable,  although  he  did  not  use  the  fusible  plug  required  by 
statute,  and  it  was  held  the  defendant  had  no  ground  of  excep- 
tion. It  is  here  declared  by  the  court  that  ordinary  care  must  be 
measured  by  the  character  and  risks  and  exposures  of  the  busi- 
ness, and  the  degree  of  care  required  is  higher  when  life  or  limb 
is  endangered,  or  a  large  amount  of  property  is  involved,  than  in 
other  cases.^ 

3.  But  the  company  are  not  liable  because  there  was  a  defi- 
ciency of  help  at  that  point.®  And  a  neglect  in  the  company  to 
fence  their  road,  whereby  the  engine  was  thrown  from  the  track, 
by  coming  in  contact  with  cattle  thus  enabled  to  come  upon  the 
road,  and  a  servant  of  the  company  so  injured  that  he  died,  will 
not  render  them  liable.^*^  (/) 

4.  But  it  has  been  questioned  whether  the  rule  has  any  just 
application  to  servants  in  different  grades,  Avho  are  subordinated 
the  one  to  the  other."     But  as  the  ground  upon  which  the  rule 

«  Supra;  see  also  Briggs  v.  Taylor,  28  Vt.  180,  184;  s.  c.  2  Redf.  Am. 
Railw.  Cas.  558. 

»  Skip  V.  Eastern  Counties  Railroad  Co.,  9  Exch.  223;  Hayes  v.  Western 
Railroad  Co.,  3  Cush.  270. 

10  Langlois  v.  Buffalo  &  Rochester  Railroad  Co.,  19  Barb.  364.  But  under 
the  English  statute  the  master  has  been  held  responsible  for  any  omission  of 
duty  in  making  his  business  reasonably  safe,  whereby  his  servants  suffered 
damage.     Britton  v.  Great  Western  Cotton  Co.,  Law  Rep.  7  Exch.  130. 

"  Gardiner,  J.,  in  Coon  v.  Syracuse  &  Utica  Railroad  Co.,  1  Seld.  492; 
8.  c.  6  Barb.  231.  But  in  Gillshannon  v.  Stony  Brook  Railroad  Co.,  10  Cush. 
228,  it  was  held  to  make  no  difference  that  the  servants  were  not  in  a  common 
employment.  This  was  the  case  of  a  laborer  riding  on  a  gravel  train  to  the 
place  of  his  cmploj^ment,  and  injured  by  the  negligence  of  those  in  charge  of 
the  train.  In  Wilson  v.  Merry,  Law  Rep.  1  H.  L.  326,  it  was  decided,  that  a 
master  is  not  responsible  for  injury  to  a  servant  caused  by  the  negligence  of 


(/)  If  the  servant  knew  of  the  want  of  a  fence.  Sweeney  t;.  Central  Pacific 
Railroad  Co.,  57  Cal.  15. 
[*520] 


§  131-] 


INJURIES    BY    FKLLOW-SERVANTS. 


663 


*  is  attempted  to  be  maintained  is  one  of  policy  chiefly,  that  it  is 
better  to  (lirow  the  hazard  upon  those  in  whose  power  it  is  to 
guard  at^aiiist  it,  it  seems  very  (piestionalile  liow  far  any  such 
distinction  is  maintainable.  It  has  been  attempted  in  a  good 
many  cases,  but  docs  not  seem  to  have  met  with  favor.(//) 

a  fellow-servant,  by  the  mere  fact  that  the  latter  is  of  a  hif^hfr  fn"ade,  e.  g., 
a  superintendent,  s.  p.  Felthani  v.  England,  Law  Rep.  2  il-  U.  :i3.  But  in 
Ilaynes  v.  East  Tennessee  &  Georgia  Railroad  Co.,  ;j  Cold.  222,  a  somewiiat 
different  view  was  taken,  the  company  being  hold  responsible  for  an  injury  to 
one  of  the  subordinate  servants  by  the  carele.ssne.ss  of  the  superintendent  in 
starting  a  train  at  an  unusual  hour.  And  in  Frost  i;.  Union  Pacific  Railroad 
Co.,  11  Am.  Law  Reg.  x.  s.  101,  where  one  servant,  by  the  direction  of  a 
superior  servant,  undertook  to  do  an  act  not  in  the  usual  course  of  his  em- 
ployment, and  was  thereby  injured  through  the  negligence  of  the  superior,  the 
master  was  held  liable.  But  where  a  brakeman  was  injured  by  the  negligence 
of  workmen  in  repairing  the  track,  it  was  held  they  were  so  far  fellow-servanta 
that  he  could  not  recover.  Cooper  v.  Milwaukee  &  Prairie  du  Chien  Railroad 
Co.,  2.3  Wis.  GG8.  So,  too,  where  a  laborer  on  a  construction  train  was  in- 
jured by  the  engineer  backing  the  train  without  a  preliminary  signal,  it  waa 
held  he  could  not  recover  of  the  company,  it  being  only  the  carelessness  of  a 
fellow-servant.     Chicago  &  Alton  Railroad  Co.  v.  Keefe,  47  III.  108. 


((/)  The  decisions  as  to  whether 
servants  are  fellow-servants  within  the 
meaning  of  the  rule,  where  they  are 
not  employed  in  precisely  the  same 
way,  are  numerous.  It  has  been  held 
that  a  conductor  and  a  brakeman  are 
fellow-servants.  Smith  v.  Potter,  46 
Mich.  258.  So  of  engine-drivers  on 
different  engines.  Chicago,  St.  Louis, 
&  New  Orleans  Railroad  Co.  v.  Doyle, 
8  Am.  &  Eng.  Railw.  Cas.  171.  So  of 
an  engine-driver  and  a  fireman  on  the 
same  engine.  Henry  v.  Lake  Shore  & 
Michigan  Southern  Railway  Co.,  49 
Mich.  40.").  So  of  an  engine-driver  and  a 
brakeman.  Railway  Co.  v.  Ranney,  37 
Ohio  St.  GG.j;  Nashville,  Chattanooga, 
&c.  Railroad  Co.  v.  Wheless,  10  Lea 
Tenn.  741.  Soof  an  engine-driver  and  a 
telegraph  operator.  Dana  v.  New  York 
Central  &  Hudson  River  Railroad  Co., 
23  Hun,  473.  Or  a  train  despatoher. 
Darrigan  v.  New  York  &  New  Eng- 
land Railroad  Co.,  52  Conn.  28.3.    See 


Phillips  I'.  Chicago,  Milwaukee,  &  St. 
Paul  Railroad  Co.,  23  Am.  &  Eng. 
Railw.  Cas.  4.'33.  So  of  an  engine- 
driver  and  a  road-mastor  through 
whose  negligence  a  switch  is  mis- 
placed. Walker  v.  Boston  &  Maine 
Railroad  Co.,  1  Am.  &  Eng.  Railw. 
Cas.  141.  So  of  an  engine-driver  and 
a  laborer  on  gravel  train.  Kumler 
V.  Junction  Railroad  Co.,  33  Ohio 
St.  l.">0.  Or  of  such  laborer  and 
a  brakeman  on  the  train.  Henry  v. 
Staten  Island  Railway  Co.,  81  X.  Y. 
373.  ( )r  of  a  brakeman  and  a  lalxirer 
employed  in  sotting  tip  a  derrick  used 
in  widening  the  roadway.  Holdon  o. 
Fitchburg  Railroad  Co.,  120  Ma<vi. 
2G8.  So  of  a  car-repairer  and  a  brake- 
man  or  head  brakeman  or  yard-m.i*tcr. 
Bosel  I'.  New  York  Central  &  Hudson 
River  Railroad  Co.,  9  Hun.  4r)7.  So 
of  train-men  on  different  trains  pen- 
erally.  Bull  r.  Mobile  &  Montgomery 
Railway  Co.,  G7  Ala.  200.  So  of 
[•521] 


5G4  LIABILITY   FOR    CONTRACTORS,   AGENTS,    ETC.        [PART   XI. 

5.  And  the  rule  itself  has  been  denied  in  some  cases,  in  this 
country,  after  very  elaborate  consideration. ^^     And   it  has  been 

^2  Little  Miami  Railroad  Co.  v.  Stevens,  20  Ohio,  415 ;  Cleveland,  Columbus, 
&  Cincinnati  Railroad  Co.  v.  Keary,  o  Ohio  St.  202.  These  cases  are  placed 
mainly  on  the  ground  of  the  person  injured  being  in  a  subordinate  position. 
It  was  held  that  the  rule  did  not  apply  to  day  laborers  on  a  railway,  who  were 
not  under  any  obligation  to  renew  their  work  from  day  to  day,  where  one, 
after  completing  his  day's  work,  was  injured  through  the  negligence  of  the 
conductor  of  one  of  the  company's  trains,  on  which  he  was  returning  home, 
free  of  charge,  but  as  part  of  the  contract  on  which  he  worked.  Russell  v. 
Hudson  River  Railroad  Co.,  5  Duer,  .39.  And  in  Whaalan  v.  Mad  River  & 
Lake  Erie  Railroad  Co.,  8  Ohio  St.  219,  it  was  held  that  where  one  of  the 
employes  of  a  railway,  engaged  in  making  repairs  on  its  track,  was  injured  by 
the  neglect  of  a  fireman  on  one  of  the  trains,  there  was  no  such  subordination 
in  regard  to  their  duty  as  to  justify  any  departure  from  the  general  rule  ex- 
cusing the  master.  See  also  Indianapolis  Railroad  Co.  v.  Love,  10  Ind.  554; 
Same  v.  Klein,  11  Ind.  38.  In  Hard.  r.  Vermont  &  Canada  Railroad  Co.,  32 
Vt.  473.  the  plaintiff's  intestate,  who  was  an  engineer  on  the  defendant's  road, 
was  killed  by  the  explosion  of  a  locomotive  engine  which  he  was  running, 
which  occurred  by  the  neglect  of  the  company's  master-mechanic  in  not  keeping 
the  machine  in  repair.  It  was  his  duty  to  superintend  and  direct  the  repairs 
on  the  engines.  The  directors  of  the  company  were  not  guilty  of  any  neglect 
in  furnishing  the  road,  in  the  first  instance,  with  suitable  machinery  and 
competent  employes,  and  they  were  ignorant  of  any  defect  in  this  engine. 
The  company  was  held  not  responsible  for  the  death  of  plaintiff's  intestate, 
on  the  ground  that  under  the  circumstances  the  injury  must  be  considered  as 
occurring  from  the  neglect  of  a  fellow-servant,  employed  in  the  same  common 
business.  But  where  a  stranger,  who  had  occasion  to  be  on  the  company's 
grounds,  was  injured  by  the  explosion  of  defendant's  engine,  it  was  held  that 
the  company  was  responsible,  unless  it  could  show  that  the  explosion  occurred 
without  its  fault.     Illinois  Central  Railroad  Co.  v.  Phillips,  49  111.  234. 

section-men  and  train-men  generally.  Railway  Co.,  11   ^lo.   Ap.  575.     But 

Blake  v.  IMaine  Central  Railroad  Co.,  contra,  Louisville  &  Xashville  Railroad 

70  Me.  60;  Gormley  r.  Ohio  &  Missis-  Co.  v.  Bowler,  9   Hei.sk.   Tenn.   8G0. 

sippi  Railway  Co.,  72  Ind.  31.     So  of  And  see  Atchison,  Topeka,  &  Santa 

a  station-agent  and  an  engineer  run-  Fe    Railway   Co.  v.  Moore,    15    Am. 

ning  an  engine  on  tracks  at  a  station.  &   Eng.    Railw.    Cas.  312.      So  of   a 

Brown   r.   Minneapolis    &   St.    Louis  general  traffic-manager  and  a  section 

Railway  Co.,  15  Am.  &  Eng.  Railw.  man.     Conway  v.  Belfast  &  Noithern 

Cas.  333.     So  of  a  section  boss  or  a  Counties  Railway  Co.,  9  Ir.  Com.  Law, 

road-master  and  a  laborer.     Barringer  498.      So    of   a   car-inspector   and   a 

V.  Delaware  &  Hudson  Canal  Co.,  19  switchman.     Gibson  r.  Northern  Cen- 

Hun,  216;  Chicago  &  Tomah  Railroad  tral  Railway  Co.,  22  Hun,  289.     Or 

Co.  V.  Simmons,  11  Brad.  147;  Hoke  of  a  car-inspector   and  a  brakeman. 

r.    St.    Louis,  Keokuk,   &    Northern  Smith  v.  Potter,  46  Mich.  258.     But 
[*521] 


§  131.] 


INJURIES   BY    FELLOW-SERVANTS. 


566 


held  not  to  apply  to  the  case  of  slaves,'^  especially  where  the  em- 
ployer stipulated  not  to  employ  tliem  ahout  the  engines  and  eiirs, 
unless  for  necessary  j)urposes  of  carrying  to  places  where  their 
services  were  needed,  and  they  were  carried  heyond  that  point, 
and  killed  in  jumping  from  the  cars.^*  The  Court  of  Sessions  in 
*  Scotland,  too,  seems  to  have  dissented  from  the  English  rule 
upon  this  subject. ^^ 

'*  Scudder  r.  Woodbridge,  1  Kelly,  lOo. 

"  Duncan  I'.  ll;iilroad  Co.,  2  Rich.  G13. 

^s  Dixon  i\  Ilaiiken,  1  Am.  Ruihv.  Cas.  5G0.  The  remarks  of  Lonl  Cock- 
neitN  are  pointed  and  pertinent.  "The  English  decisions  certainly  .seem  to 
determine  that  in  England,  where  a  person  is  injured  by  the  culpable  uegli- 

conlra,  Brann  v.  Chicago,  Rock  Island,  where  they  are  in  performance  of 
&  Pacific  Railroad  Co.,  53  Iowa,  505;  duties  under  an  order  requiring  con- 
King  V.  Ohio  &  Mississippi  Railway  ductors  running  under  special  or  tele- 
Co.,  11  Hissell,  3G2.  graphic  orders  to  show  such  orders  to 
But  it  has  been  held  otherwise  in  engine-drivers,  and  engine-drivers  to 
some  circumstances,  of  a  track-repairer  read  and  understand  such  orders.  Ross 
and  a  train-man.  Dick  v.  Railroad  v.  Chicago,  Milwaukee,  &  St.  Paul 
Co.,  38  Ohio  St.  389.  For  example,  Railway  Co ,  2  McCrary,  235.  So  it 
an  engine-driver.  Pittsburg,  Fort  has  been  held  that  the  foreman  of  one 
Wayne,  &  Chicago  Railway  Co.  t'.  of  numerous  gangs  of  men  working 
Powers,  74  111.  311.  Or  a  fireman,  separately  under  a  general  supeiin- 
Chicago  &  Northwestern  Railroad  Co.  tendent  in  the  construction  of  a  road 
V.  Moranda,  93  111.  302.  Or  a  brake-  is  not  a  fellow-servant  with  a  man  in 
man.  Vantrain  v.  St.  Louis,  Iron  the  gang  injured  by  the  negligent 
Mountain,  &  Southern  Railway  Co.,  thawing  of  giant  powder  by  an  open 
8  Mo.  Ap.  538.  So  of  a  car-loader  fire.  (Jilmore  r.  Northern  Pacific 
and  a  switch-tender.  Chicago,  Rock  Railway  Co.,  18  Fed.  Rep.  SOC;  s.  c. 
Island,  &  Pacific  Railroad  Co.  v.  15  Am.  &  Eng.  Railw.  Cas.  '.V)l. 
Henry,  7  Brad.  322.  So  of  a  workman  As  to  whether  the  conductor  of  a 
and  the  foreman  in  a  repair  shop,  train  is  to  be  regarde<l  as  a  vice-prin- 
Lake  Shore  &  Michigan  Southern  Rail-  cipal  as  to  other  train-men,  see  Chi- 
way  Co.  V.  Lavalley,  3G  Ohio  St.  221.  cago,  Milwaukee,  &  St.  Paul  Ruilway 
So  of  an  engine-driver  and  signal  men.  Co.  r.  Ross,  112  U.  S.  377,  wliich 
Swaiiison  v.  Northeastern  Railway  liolds  that  he  is;  and  Ca.ssidy  r.  Maim* 
Co.,  Law  Rep.  3  Exch.  341.  So  of  a  Central  Railroad  Co.,  7l»  Me.  ISS.  and 
draftsman  in  locomotive  works,  in-  Pease  r.  Chicago  &  Northwestern  Rail- 
jured  in  falling  over  an  embankment  way  Co.,  17  Am.  &  Eng.  Railw  Cns. 
thrown  up  in  deepening  a  cellar  on  527,  which  hold  contra.  See  Hurling- 
the  premises,  and  workmen  engaged  in  ton  &  Missouri  River  Railn).'\d  Co.  r. 
the  same  employ  at  digging.  Baird  Crockett.  21  .Am.  &  Eng.  Railw.  Ca«. 
V.  IVttit,  29  Phila.  397.  And  it  has  390;  Louisville  .»<  N.ashville  Riilro.ad 
been  held  that  an  engine-driver  and  a  Co.  v.  Moore,  21  Am.  &  Eng.  Railw. 
conductor    are     not    fellow-servants,  Cas.  413. 

[•o22J 


566  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.        [PART   VI. 

*  6.  But  it  has  been  held,  that  there  is  no  implied  obligation 
on  the  part  of  a  ship-owner  towards  a  seaman,  who  agrees  to 

gence  of  a  servant,  that  servant's  master  is  liable  in  reparation,  provided  the 
injured  person  was  one  of  the  public,  but  that  he  is  not  responsible  if  the 
person  so  injured  happened  to  be  a  fellow-workman  of  the  delinquent  servant. 
It  is  said,  as  an  illustration  of  this,  that  if  a  coachman  kills  a  stranger  by 
improper  driving,  the  employer  of  the  coachman  is  liable,  but  that  he  is  not 
liable  if  the  coachman  only  kills  the  footman.  If  this  be  the  law  of  England, 
I  speak  of  it  with  all  due  respect,  it  most  certainly  is  not  the  law  of  Scotland. 
I  defy  any  industry  to  produce  a  single  decision  or  dictum,  or  institutional  in- 
dication, or  any  trace  of  any  authority  to  this  effect,  or  of  this  tendency,  from 
the  whole  range  of  our  law.  If  any  such  idea  exists  in  our  system,  it  has  as 
yet  lurked  undetected.  It  has  never  been  directly  condemned,  because  it  has 
never  been  stated."  After  citing  numerous  cases  in  their  reports,  where  the 
question  was  involved  but  not  raised,  his  lordship  continues  :  "  The  new  rule 
seenjed  to  be  recommended  to  us,  not  only  on  account  of  the  respect  due  to 
the  foreign  tribunal,  —  the  weight  of  which  we  all  acknowledge,  —  but  also  on 
account  of  its  own  inherent  justice.  This  last  recommendation  fails  with  me, 
because  I  think  that  the  justice  of  tlie  thing  is  exactly  in  the  opposite  direc- 
tion. I  have  rarely  come  upon  any  principle  that  seems  less  reconcilable  with 
legal  reason.  I  can  conceive  some  reasoning  for  exempting  the  employer 
from  liability  altogether,  but  not  one  for  exempting  him  only  when  those  who 
act  for  him  injure  one  of  themselves.  It  rather  seems  to  me  that  these  are 
the  very  persons  who  have  the  strongest  claim  on  him  for  reparation,  because 
they  incur  danger  on  his  account,  and  certainly  are  not  understood  by  our  law 
to  come  under  any  engagement  to  take  these  risks  on  themselves."  But  these 
remarks  have  no  weight  beyond  the  argument.  The  English  cases  certainly 
regard  the  servant  as  impliedly  stipulating  to  run  these  risks  when  he  enters 
into  the  service.  And  the  great  preponderance  of  authority  in  this  country  is 
undoubtedly  in  favor  of  the  English  rule.  Marshall  v.  Stewart,  33  Eng.  L.  & 
Eq.  1.  Opinion  of  Cranwortii,  Chancellor.  But  see  the  very  lucid  and 
convincing  argument  of  Shaw,  C.  J.,  in  Farwell  v.  Boston  &  Worcester  Rail- 
road Co.,  4  Met.  49,  56;  s.  c.  1  Redf.  Am.  Railw.  Cas.  395;  s.  c.  1  Am. 
Railw.  Cas.  339;  and  the  most  ingenious  attempt  at  reductio  ad  absurdum 
upon  the  subject  by  Lord  Abinger,  in  Priestly  i;.  Fowler,  1  M.  &  W.  1,  6,  7, 
where  the  learned  Chief  Baron,  among  other  ingenious  speculations,  supposes 
some  fearful  consequences  if  the  master  were  to  be  held  liable  for  the  negli- 
gence of  the  chamber-maid  in  putting  the  servant  into  wet  sheets  ! 

If  a  man  should  receive  damage  in  any  way  by  his  own  foolhardiness, 
even  where  a  fellow-servant  was  concerned  in  producing  the  result,  obviously 
he  could  not  recover  of  any  one.  Some  discretion  and  reserve  are  no  doubt 
requisite  in  the  application  of  the  rule  of  the  servant's  right  to  recover  for 
the  default  of  his  fellow-servant,  but  whether  the  difficulty  of  its  application 
will  fairly  justify  its  abandonment,  would  seem  somewhat  questionable,  if 
the  thing  were  res  intcgra,  which  it  certainly  is  not,  either  in  the  English 
or  in  the  American  law.     In  an  English  case  in  the  Court  of  Exchequer, 

[*523] 


§  131.]  INJURIES   BY    FELLOW-SERVANTS.  667 

serve  *  Oil  hoartl,  tliat  the  ship  is  seaworthy,  and  in  the  absence 
of  any  express  warranty  to  tliat  elTect,  or  of  any  knuwled^'e  of 
the  defect,  or  any  personal  blame  on  the  part  of  the  shii>-owncr, 
the  seaman  cannot  maintain  an  action,  by  reason  of  the  ship  bo- 
coming  leaky,  and  his  being  obliged  to  undergo  extra  labor,'*' 

VViggett  V.  Fox,  11  Exch.  832;  s.  c.  ?,G  Eag.  L.  &  Eq.  480,  tlie  court  adhere 
to  the  rule  laid  down  in  foi+iier  English  cases  on  this  subject,  reiterating 
the  same  reasons,  with  the  qualification,  that  if  there  were  any  reason  for 
holding  that  the  persons  whose  act  caused  the  injury  were  not  persons  of  ordi- 
nary skill  and  care,  the  case  would  be  different,  there  being  an  implied  obliga- 
tion on  the  master  not  to  employ  such  persons.  With  this  qualification 
there  seems  to  be  no  serious  objection  to  the  English  rule.  Bassett  v.  Nor- 
wich &  Nashua  Railroad  Co.,  19  Law  Rep.  551.  In  a  case  in  the  Court 
of  Sessions  in  Scotland,  so  late  as  January,  1857,  the  court  repelled  a  plea, 
founded  on  the  claim  that  the  master  is  not  liable  to  a  servant  for  the 
negligence  of  a  fellow-servant.  The  Lord  Justice  Clerk  took  occasion  to 
remark,  that  the  master's  liability  rested  on  the  broad  principle,  that  an  em- 
ployer being  liable  to  third  parties  for  injuries  caused  by  his  servants,  ii 
forllori  he  is  liable  to  the  servant  for  injury  caused  by  another  servant.  But 
for  injury  to  servants  through  obvious  or  known  defects  of  machinery  in 
the  use  of  the  master,  unknown  to  the  servant,  but  which  the  employer  by  the 
use  of  ordinary  care  could  have  cured,  the  cases  all  agree  that  he  is  liable. 
McGatrick  v.  Wason,  -1  Ohio  St.  5GG.  In  the  Exchequer  Chamber,  so  late 
as  May,  1857,  in  Roberts  v.  Smith,  29  Law  T.  1G9,  it  was  held,  that  where 
the  master  directs  the  conduct  of  the  servant,  he  is  liable  fur  any  injury  result- 
ing therefrom  to  the  other  servants.  See  also  Weyant  v.  New  York  &  llarletn 
Railroad  Co.,  3  Duer,  360.  It  has  been  held  in  some  cases,  as  in  Scu<lder  v. 
Woodbridge,  1  Ga.  195,  that  the  rule  that  the  master  is  not  liable  for  an  injury 
to  one  servant  inflicted  by  the  want  of  care  or  skill  in  a  fellow-servant,  does  not 
apply  to  the  case  of  slaves,  on  account  of  their  want  of  freetlom  in  action  and 
choice  in  continuing  the  service  when  it  becomes  perilous.  But  if  an  exception 
could  be  founded  on  any  such  basis,  it  would  extend  to  all  the  subordinate 
relations  of  service,  as  has  sometimes  been  attempted.  But  where  the  injury 
results  from  the  habitual  negligence  of  the  engineer  of  a  boat,  whereby  slaves 
perish  by  the  bursting  of  a  boiler,  the  master  of  the  boat  is  liable,  and 
the  same  rule  ap[>lies  to  the  case  of  freemen.  Walker  v.  Boiling,  22  Ala. 
291;  Cook  v.  Rarham,  24  Ala.  21.  The  court  here  were  equally  «livide<i  on 
the  question,  whether  the  general  rule  on  this  subject  applied  to  the  ca.se  of 
a  slave  hired  on  a  steamboat.  But  the  court  subsequently  heltl,  on  general 
principles,  that  where  one  employs  a  mechanic  to  re|>air  a  building  which 
is  in  a  ruinous  state,  not  known  to  t^e  workmen  and  not  discK>sed  to  the 
contractor,  the  employer  is  liable  for  all  injury  sustained  by  the  contractor  or 
his  subordinates,  tliough  slaves,  by  reason  of  the  {leril  \x>  which  thoy  are  thus 
fraudulently  exposed,  but  that  he  will  not  be  held  so  liable  if  he  inform  the 
contractor  of  the  peril  to  which  he  is  exf>o.sed.  Perry  v.  Marsh.  25  .\la.  059. 
18  Couch  t'.  Steel,  3  E.  &  B.  402;  s.c.  24  Eng.  L.  &  Eq.  77.     But  if  the 

[•524] 


668  LIABILITY    FOR   CONTRACTORS,   AGENTS,   ETC.       [PART   VI. 

7.  But  a  carpenter  employed  by  a  railway  company  to  build 
one  of  their  bridges,  and  who  took  passage  in  their  cars,  by  their 
directions,  to  go  to  a  certain  point  for  tlie  purj)ose  of  loading 
timber  to  be  used  in  building  the  bridge,  and  who  was  injured 
in  the  course  of  the  passage  by  the  negligent  conduct  of  the  train, 
is  entitled  to  recover  of  the  company,  the  plaintiff  having  no  par- 
ticular connection  with  the  conduct  of  the  business  in  which  he 
was  injured.^'' 

8.  The  English  courts  still  maintain  their  former  stand,  that 
all  the  servants  of  the  same  company  engaged  in  carrying  forward 
the  common  enterprise,  although  in  different  departments,  widely 
separated,  or  strictly  subordinated  to  others,  are  to  be  regarded 
as  fellow-servants,  bound  by  the  terms  of  their  em]>loyment  to 
run  the  hazard  of  any  negligence  or  wrong-doing  which  may  be 
committed  by  any  of  the  number,  so  far  as  it  operates  to  their 
detriment.  This  is  strikingly  illustrated  in  a  case  in  the  Com- 
mon *  Pleas,^^  (/i)  where  it  was  held  that  one  employed  to  pick 
up  stones  from  off  the  defendant's  line,  and  who,  while  returning 
in  the  evening,  after  his  work  was  over,  in  a  train  driven  by  the 
defendant's  servants,  was  injured  by  a  collision  caused  by  the 
negligence  of  those  who  had  charge  of  the  train,  it  being  ono 

master  might  have  known  the  exposure  of  the  servant,  but  for  his  own  want 
of  ordinary  care,  as  in  the  use  of  a  defective  locomotive  engine,  which  ex- 
plodes and  injures  the  servant,  through  defective  construction,  the  master  is 
liable  for  the  injury.  Noyes  v.  Smith,  28  Vt.  59.  But  where  the  danger  is 
known  to  the  servant  and  not  communicated  to  the  superior,  or  master,  he 
cannot  recover  for  any  injury  he  may  sustain  in  consequence.  McMillan  v. 
Saratoga  &  Washington  Railroad  Co.,  20  Barb.  44D;  Ilubgh  v.  New  Orleans 
&  Carrollton  Railroad  Co.,  6  La.  An.  495. 

'^''  Gillenwater  r.  Madison  &  Indianapolis  Railroad  Co.,  5  Ind.  340;  s.  p. 
O'Donnell  v.  Allegheny  Valley  Railroad  Co.,  59  Penn.  St  239.  And  where 
laborers  on  a  railway  were  transported  to  and  from  their  labor  and  meals  on 
the  gravel  trains  of  the  company,  which  they  were  employed  in  loading  and 
unloading,  but  had  no  agency  in  managing,  and  in  such  transportation,  by 
the  gross  negligence  and  unskilfulness  of  the  engineer,  were  injured,  it  was 
held  that  the  company  was  liable.  Fitzpatrick  v.  New  Albany  &  Salem  Rail- 
road Co.,  7  Ind.  430.  But  not  where  the  servant  is  in  fault  in  attempting  to 
get  on  the  train  when  in  motion.  Timmons  v.  Central  Ohio  Railroad  Co., 
6  Ohio  St.  105. 

"  Tunney  v.  Midland  Railway  Co.,  Law  Rep.  1  C.  P.  291;  s.  c.  12  Jur. 
N.  8.  691. 


(A)  See  supra,  note  (6). 
[*525] 


§  131.]  INJURIES    BY    FELLOW-SERVANTS.  5G9 

of  the  terms  of  tlic  contract  of  liirinir  Uiat  lio  shoiihj  rotiirn  in  the 
defendant's  train,  conld  not  recover  daniajrt^s  of  lln;  ctMujKiny, 
as  he  and  the  person  g-nilty  of  the  neglij^a-nee  resulting  in  the 
injury  were  fellou-servants  engaged  in  a  common  enijihjyment, 
within  Uie  meaning  of  tlie  rule  of  law  apjjlicalile  to  the  case. 

9.  This  whole  question  is  very  clahorately  reviewed  in  a  case 
in  Kentucky  '^  which  we  shall  here  repeat,  together  with  our  own 
comments  at  the  time  npon  the  several  propositions  emhraced 
in  the  opinion,  at  the  risk  of  some  repetition,  perhaps.  Whore 
an  employe  npon  a  railway  is  injured  hy  the  negligence  of  tlie 
engineer  of  the  company,  and  is  himself  guilty  only  of  such 
neglect  and  want  of  care  as  would  not  have  exposed  him  to  the 
injury  but  for  the  gross  neglect  of  the  engineer,  and  when  the 
engineer  might  with  ordinary  care  have  avoided  the  injurv,  he 
is  not  precluded  from  maintaining  his  action.  "What  is  gross 
neglect  in  the  engineer  may  be  determined  by  the  court,  as  a 
question  of  law,  where  there  is  no  controversy  in  regard  to  the 
facts.  In  regard  to  those  acts  of  a  corporation  which  require 
care,  diligence,  and  judgment,  and  which  it  performs  through  the 
instrumentality  of  general  superintending  agents,  the  corporation 
itself  is  to  be  regarded  as  always  present,  supervising  the  action 
of  its  agents.  The  rule  of  law,  that  the  master  is  not  responsible 
to  one  of  his  servants  for  an  injury  inflicted  through  the  neglect 
of  a  fellow-servant,  is  not  adopted,  to  the  full  extent  of  the 
English  decisions,  in  the  state  of  Kentucky.  'IMie  rule  is  there 
regarded  as  anomalous,  inconsistent  with  principle,  analogy,  and 
public  policy,  and  unsupported  by  any  good  or  consistent  reason. 
In  regard  to  all  servants  of  the  company  acting  in  a  sid)ordinatc 
sphere,  the  one  class  to  another,  and  receiving  injuries  whih'  in 
the  performance  of  duties,  under  the  command  of  a  superior, 
whose  authority  they  have  no  right  to  disobey  or  disregard,  it 
is  the  same  *  precisely  as  if  the  injury  were  inflicted  by  the  act 
of  the  company  ;  and  if  there  is  any  want  of  care  and  skill  in 
the  superior,  such  as  his  position  and  duty  reasonalily  demand, 
the  company  arc  responsible.  In  such  cases  there  is  no  im|)lied 
undertaking  on  the  part  of  the  servant  to  risk  the  consequences 
of  the  misconduct  of  the  agent  of  the  company  under  whoso 
authority  he  acted,  and  through  whose  negligence  he  received  tlie 

"  Louisville  &  Nashville  Railroad  Co.  v.  Collins,  5  Am.  Law  Keg.  N.  s.  265; 
s.  c.  2  Duvall,  lU. 

[•52r.] 


670  LIABILITY   FOR   CONTRACTORS,    AGENTS,    ETC.        [PART   VL 

injury.  Servants  so  situated,  in  distinct  grades  of  superiority  and 
subordination,  arc  not  to  be  considered  as  "  fellow-servants,"  or 
"in  the  same  service;"  but  rather  in  the  light  of  strangers  to 
each  other's  duties  and  responsibilities ;  and  the  subordinate  may 
recover  of  the  company  for  any  injury  sustained  by  reason  of  the 
ordinary  neglect  of  the  superior.  But  if  the  subordinate  is  him- 
self guilty  of  any  want  of  ordinary  care,  whereby  he  is  more 
exposed  to  the  injury,  he  cannot  recover,  unless  the  superior 
was  guilty  of  wilful  misconduct  or  gross  neglect,  but  for  which 
he  might  have  avoided  inflicting  the  injury,  notwithstanding  the 
negligence  of  the  other  party.  Where,  therefore,  an  engineer, 
while  upon  his  engine,  ordered  a  common  laborer  to  do  some 
needed  work  under  the  engine,  in  fastening  bolts  or  screws 
belonging  to  it;  and  such  workman,  Avhile  lying  upon  his  back 
in  the  performance  of  the  service,  had  both  his  legs  cut  off  by  the 
movement  of  the  engine  forward  and  backward,  through  the  gross 
neglect  or  wilful  misconduct  of  such  engineer,  the  company  are 
responsible  for  the  injury,  notwithstanding  there  might  have  been 
some  want  of  ordinary  care  on  the  part  of  the  subordinate,  con- 
tributing to  some  extent  to  the  injury,  but  not  necessitating  it, 
except  through  the  gross  misconduct  of  the  superior.  Per  Robert- 
son, C.  J.  —  We  do  not  consider  that  the  rule  exempting  the 
company  from  responsibility  for  injuries  inflicted  upon  their  ser- 
vants, through  the  want  of  ordinary  care  in  other  servants  of  the 
company,  extends  beyond  those  who  are  "  strictly  fellow-servants  " 
in  the  same  grade  of  employment,  and  where  one  is  not  subject 
to  the  order  or  control  of  the  others.  Beyond  this  the  company 
is  responsible  for  the  consequences  of  the  misconduct  of  superiors 
towards  inferiors  in  its  service,  the  same  as  towards  strangers.^'' 

20  This  is  an  extended  syllabus  of  the  case,  embracing  all  the  points  on 
which  the  opinion  of  the  court  is  given,  without  regard  to  their  being  directly 
and  necessarily  involved  in  the  decision  of  the  cause.  Notwithstanding  the 
avowed  willingness  of  the  learned  judge  to  disregard  the  general  current  of 
authority,  and  the  apparent  spirit  of  freedom  with  which  he  deals  with  the 
decisions,  it  has  to  be  admitted  that  the  opinion  is  entirely  sound  in  its  princi- 
ples, and  maintained  with  uncommon  ability  in  its  logic  as  well  as  in  its  illus- 
trations. It  is  to  be  noticed  that  the  learned  judge  declares  unequivocally  that 
the  corporation  is  to  be  regarded  as  constructively  present  in  all  acts  per- 
formed by  its  general  agents  within  the  scope  of  their  authority,  i.  e.,  within 
the  range  of  their  ordinary  employment.  But  the  profession  should  be 
warned  that  the  decisions  ou  the  other  side  embrace  a  very  large  number  of 

[*526] 


§  131.]  INJURIES    BY    FELLOW-SEnVANTS.  571 

*  10.  The  question  is  again  reviewed  by  the  same  learned  jiid;re 
who  gave  the  wldoly-adniircd    opinion    in    Farwcll    v.    iJoston  & 

the  best-considered  English  cases,  and  an  almost  equal  number  in  tlio  Ameri- 
can states;  including  all,  so  far  as  we  know,  with  the  exception  of  Ohio, 
Georgia,  and  Kentucky.  And  the  decisions  in  the.se  latter  states  are  all 
placed  on  peculiar  grounds,  thereby  virtually  confessing  the  soundness  of  the 
general  rule,  that  one  cannot  recover  of  his  employer  for  an  injury  inflicted 
through  the  want  of  care  in  a  fellow-.servant,  employed  in  the  same  depart- 
ment of  the  master's  business,  and  under  the  same  general  control.  The  con- 
sequences of  mistake  or  misapprehension,  on  this  point,  have  led  many  courts 
into  conclusions  greatly  at  variance  with  reason  and  the  common  instincts  of 
humanity.  The  reasonableness  and  justice  of  this  construction  may,  it  is  to 
be  hoped,  induce  its  universal  adoption  at  no  distant  day.  See  supra,  §  TJO, 
pi.  G,  ct  seq.  and  notes,  and  cases  cited. 

In  regard  to  the  leading  point  involved  in  the  Kentucky  case,  how  far  a 
servant  is  entitled  to  recover  of  the  master  for  an  injury  inflicted  by  the  neg- 
ligence or  want  of  skill  of  a  fellow-servant,  the  doctrine  of  exemption  was 
first  established  in  the  Court  of  Exchequer  in  Priestly  v.  Fowler,  .3  M.  &  W.  1, 
in  1SJ7.  Tiie  rule  was  adopted  in  this  country  in  Massachusetts,  in  Farwell  r. 
Boston  &  Worcester  Railroad  Co.,  4  Met.  49,  in  184"2,  and  sujiported  by  one  of 
the  ablest  and  most  unexceptionable  opinions  ever  delivered  from  the  .American 
Bench, — an  opinion  which  has  commanded  the  admiration  of  the  entire  pro- 
fession, both  Bench  and  Bar,  in  England  and  in  America,  and  has  been  more 
extensively  adopted  and  formally  incorporated  into  the  opinions  of  the  Eng- 
lish courts  than  perhaps  any  other  opinion  of  an  American  judge.  This  ca.so 
was  preceded  by  that  of  ^lurray  v.  South  Carolina  Railroad  Co.,  1  .Mc.Mullan, 
385;  but  the  former  has  been  regarded  as  the  leading  American  case.  Theso 
leading  opinions  have  been  followed  by  many  cases  reaching  down  to  the 
present  time,  most  of  them  occupied  in  the  discussion  of  what  were  claimed 
to  be  exceptional  circumstances.  In  England,  there  are,  among  a  multitude 
of  others,  Hutchinson  v.  York,  Newcastle,  &  Berwick  Railway  Co.,  5  Exch. 
343;  Wigmore  v.  Jay,  5  Exch.  313,  3."j1;  Skip  v.  Eastern  Counties  Raihv.iy 
Co.,  9  Exch.  223;  s.  c.  21  Eng.  L.  &  Eq.  39(5;  Degg  v.  Midland  Railway  Co  , 
1  II.  &  N.  773;  Tarrant  v.  Webb,  18  C.  B.  797;  8,  c.  37  Eng.  L.  &  Eq.  2S1 ; 
Mellors  v.  Shaw,  1  B.  &  S.  437;  s.  c.  7  Jur.  N.  s.  845;  Seymour  r.  Maddox.  1<J 
Q.  B.  32G;  Ormond  v.  Holland,  1  Ellis,  B.  &  E.  102.  In  this  country  the  d.M:i- 
sions  are  numerous.  The  following  show  how  far  the  rule  prevails  in  differ- 
ent states.  Brown  v.  Maxwell,  G  Hill,  N.  Y.  592;  Coon  r.  Syracuse  &  I'tica 
Railroad  Co.,  G  Barb.  231 ;  s.  c.  1  Sdd.  492.  and  other  Now  York  cases  ■ 
supra,  %  131.  See  also  Ilonner  v.  Illinois  Central  Railroatl  Co.,  15  111. 
Ryan  v.  Cumberland  Valley  Railroad  Co.,  23  Penn.  St.  3SI;  Madi.son  &  In- 
dianapolis Railroad  Co.  v.  Bacon,  G  Porter,  205;  llawley  v.  Baltimore  &  Ohio 
Railroad  Co.,  G  Am.  Law  Reg.  352;  Frazier  r.  Penn.sylvania  Riilroad  Co.,  38 
Penn.  St.  104;  Wright  v.  New  York  Central  Railroa.l  Co.,  28  Barb.  80;  Carlo 
V.  Bangor  &  Piscataquis  Canal  &  Railway  Co.,  43  Me.  209;  Noyes  i'.  Smith.  2S 
Vt.  59;   Indianapolis  Railroad  Co.  v.  Love,  10  Ind.  554;  Same  r.  Klein,   11 

[•527] 


572  LIABILITY    FOR   CONTRACTORS,    AGENTS,    ETC.        [PART   VI. 

*  Worcester  Railway,  in  a  later  case,^^  and  the  following  propo- 
sitions  maintained.     A   carpenter   employed   by   the   day   by    a 

Ind.  38.  The  general  principle  is  adopted  in  all  the  other  states  where  the 
question  has  arisen ;  for  altliough  in  Ohio,  in  the  cases  of  Little  Miami  Rail- 
road Co.  V.  Stevens,  20  Ohio,  415,  and  Cleveland,  Columbus,  &  Cincinnati 
llailroad  Co.  v.  Keary,  3  Ohio  St.  201,  the  companies  are  held  responsible  for 
the  injury,  the  decisions  are  placed  on  the  ground,  that  the  persons  injured 
were  in  subordinate  positions.  And  in  Scudder  i;.  Woodbridge,  1  Kelly,  195, 
it  was  held  that  the  rule  did  not  excuse  the  master  for  injury  thus  caused  to 
slaves,  mainly  on  the  same  ground  of  their  dependent  and  subordinate  posi- 
tions. And  the  Kentucky  case  is  placed  on  the  same  ground.  In  the  more 
recent  case  of  Whaalan  v.  Mad  River  &  Lake  Erie  Railroad  Co.,  8  Ohio  St. 
249,  it  was  held,  where  one  of  the  trackmen  was  injured  by  neglect  of  the  fire- 
man on  one  of  the  trains,  that  there  was  no  such  subordination  of  position  as  to 
take  the  case  out  of  the  general  rule,  and  the  case  was  decided  in  favor  of  the 
company,  thus  maintaining  the  soundness  of  the  general  rule  in  that  state. 
The  Kentucky  courts  do  not  seem  to  hold  the  master  excused  in  such  cases, 
unless  the  fellow-servant  by  whose  act  or  omission  the  injury  occurs,  is  com- 
petent for  his  duty  and  reasonably  diligent  in  its  performance,  Louisville  & 
Nashville  Railroad  Co.  v.  Felbern,  6  Bush,  574.  But  the  fact  that  there  is  a 
safer  mode  of  constructing  machinery  is  no  ground  of  charging  the  master. 
Wonder  ;;.  Baltimore  &  Ohio  Railroad  Co.,  32  Md.  41L 

It  is  safe,  therefore,  to  state,  that  all  the  cases,  both  English  and  American, 
maintain  the  general  rule  to  the  extent  of  those  who  are  strictly  "  fellow- 
servants  "  in  the  same  department  of  service.  And  where  this  is  not  the  fact, 
but  the  employes  are  so  far  removed  from  each  other  that  the  one  is  bound  to 
obey  the  diiections  of  the  other,  so  that  the  superior  may  be  fairly  regarded 
as  representing  the  master,  we  think  it  more  consonant  with  reason  and  justice 
to  treat  the  matter  as  not  coming  within  the  principle  of  the  rule.  This  is  so 
declared  by  Gardineh,  J.,  in  Coon  v.  Syracuse  &  Ctica  Railroad  Co.,  1  Seld. 
492.  But  this  qualification  is  denied  by  Shaw,  C.  J.,  in  Farwell  v.  Boston  & 
Worcester  Railroad  Co.,  4  Met.  49,  GO,  Gl,  unless  the  departments  of  service 
are  so  far  independent  as  to  have  no  privity  with  each  other,  not  being  under 
the  control  of  a  common  master.  And  it  was  so  decided  in  Gillshannon  v. 
Stony  Brook  Railroad  Co.,  10  Cush.  228.  And  it  seems  finally  to  be  settled 
on  autliority,  that  it  is  sufficient  to  bring  the  case  within  the  rule,  that  the 
servants  are  employed  in  the  same  common  service,  as  in  running  a  railway, 
or  working  a  mine.  Wright  v.  New  York  Central  Railroad  Co.,  25  N.  Y.  552, 
5G4,  by  Allkn,  J.  The  question  is  whether  they  are  under  the  same  general 
control.  Abraham  v.  Reynolds,  5  II.  &  N.  142;  Hard  v.  Vermont  &  Canada 
Railioad  Co.,  32  Vt.  473.  And  there  is  no  question  that  the  master  is  respon- 
sible for  any  want  of  skill  or  care  in  employing  competent  and  trustworthy 
servants,  and  in  sufficient  numbers;  and  in  furnishing  safe  and  suitable  ma- 
chinery for  the  work  in  hand,  unless  the  servants,  knowing,  or  having  the 


21  Seaver  v.  Boston  &  Maine  Railroad  Co.,  14  Gray,  4G6. 
[*528] 


§  131.]  INJURIES   BY   FELLOW-SEUVANTS.'  573 

railway  corporation*  to  work  on  tiic  line  of  their  road,  and 
carried  on  the  cars  to  the  place  of  such  work  without  payini;  fare, 
cannot  maintain  an  *  action  ngainst  the  corp(jration  for  injuries 
received  wliile  being  so  carried,  \)y  the  negligence  of  the  engineer 
employed  Ijy  them  for  that  service,  or  by  a  hidden  defect  in  the 
axle,  the  failure  to  discover  which,  if  discmcrable,  was  occasioned 
by  the  negligence  of  servants  of  the  corporation,  whose  duty  it 
was  to  examine  and  keep  in  repair  the  cars,  engines,  and  axles. 
In  such  a  case,  if  the  company  exercised  reasonable  care  in  pro 
viding  and  using  the  machinery,  in  the  use  of  which  the  plaintiff 
was  so  injured,  they  are  not  responsible  for  the  injury. 

11.  And  in  a  later  casc^^  before  the  same  court,  where  a  servant 
was  accidentally  hurt  by  an  engine  running  upon  him  from  the 
turn-table,  through  some  defect  in  the  brake,  it  was  held  compe- 
tent for  the  company  to  show  in  defence  that  the  person  having 
charge  of  all  the  engines  upon  the  road  had  given  instructions  to 
the  engineers  to  have  the  wheels  of  their  engines  blockccl  while 
turning  upon  the  turn-table,  and  that  the  accident  occurred 
in  consc([uencc  of  some  servant  neglecting  such  instructions, 
although  the  instructions  had  not  been  communicated  to  the 
plaintiff. 

12.  But  the  servants  of  one  railway  company  arc  not  fellow- 
servants  with  the  servants  of  another  company  who  use  the  same 
station  with  the  first  company,  and  while  those  are  subject  to  the 
direction  of  the  station-master  of  that  company,  and  the  second 


means  of  knowing,  of  the  deficiency  in  furnishing  proper  help  or  machinery, 
consent  to  continue  in  the  employment.  And  the  nfglect  or  want  of  skill  of 
the  master's  general  agent  employed  in  procuring  help  and  machinery,  is  the 
act  of  the  master.  Hard  i'.  Vermont  &  Canada  Raih-oad  Co.,  supra:  Wiggett 
V.  Fox,  3G  Eng.  L.  &  Eq.  48G ;  11  Exch.  832;  Noyes  v.  Smith,  'JS  Vt.  TjO. 
Indeed  tliis  exception  is  recognized  in  most  of  the  preceding  ca.se.s.  Many  of 
the  late  cases  have  turned  on  this  point,  the  general  /ule  having  been  regarded 
as  settled  beyond  question  for  many  years.  Wo  arc  not  disposed  to  que.slion 
the  extent  of  the  exceptions  to  the  general  rule;  and  possibly  any  grcitor  ox- 
tension  in  that  direction  might  essentially  impair  the  general  benefit  to  be 
derived  from  it.  But  we  would  be  content  to  treat  all  the  subordinatea  who 
were  under  the  control  of  a  superior  as  entitled  to  iioM  .such  sujierior  as  repro- 
senting  the  master,  and  the  master  as  responsible  for  liis  incompetency  or  mis- 
conduct. We  should  regard  this  as  a  more  salutary  rule  than  the  pre!»ent  one. 
But  the  general  current  of  authority  seems  greatly  in  the  opposite  direction. 
2^  Durgin  i-.  Munson,  9  Allen,  396. 

[•529,  •530] 


574  LIABILITY    FOR    CONTRACTORS,   AGENTS,   ETC.       [PART   VI. 

company  is  responsible  for  an  injury  to  one  of  the  servants  of  the 
first  company,  by  the  negligence  of  their  engine-driver.^^  (i) 

13.  Altliougli  a  railway  company  is  not  responsible  to  one 
whom  they  employ  to  repair  their  cars,  for  any  hurt  he  may  re- 
ceive in  passing  upon  the  company's  cars  to  and  from  his  work, 
free  of  charge,  through  the  misconduct  of  a  switchman,  provided 
the  company  were  not  in  fault  in  his  selection  or  retainer ;  but,  if 
he  were  an  habitual  drunkard,  and  that  known  to  the  company,  or 
might  have  been  known  but  for  their  own  neglect  to  make  proper 
inspection  of  their  business,  and  the  injury  resulted  from  this  in- 
toxication, the  testimony  is  proper  to  be  submitted  to  the  jury,  as 
tending  to  show  culpable  neglect  on  the  part  of  the  company .^^  (/) 
And  when  *  this  case  was  before  the  court,  at  another  time,-^  it 
was  held  that  a  verdict  for  the  plaintiff  will  not  be  disturbed  in 
such  a  case,  because  it  was,  by  the  order  of  the  company,  the  regular 
business  of  another  servant  of  the  company  to  manage  the  switch, 
and  on  this  occasion  it  was  wrongly  adjusted  by  the  flagman,  who 
was  an  habitual  drunkard,  and  had  usually  been  intrusted  with 
the  management  of  the  switch,  and  that  his  habits  were  known, 
or  by  the  exercise  of  proper  care  would  have  been  known,  to  the 
corporation.  Nor  will  it  excuse  the  company  that  due  care  was 
exercised  in  the  original  selection  of  such  flagman,  and  that  a 
proper  local  agent  had  been  employed  by  the  company  with  au- 

23  Warbuvton  v.  Great  Western  Railway  Co.,  Law  Rep.  2  Exch.  30. 
2*  Gilman  v.  Eastern  Railroad  Co.,  10  Allen,  233. 
25  13  Allen,  433. 

(i)  But  where  different  roads  make  the  control  of  the  lessor's  road-raaster, 

jointuseof  a  depot,  each  company  owes  the  road-master  is  so  far  the  servant 

to  the  servants  of  the  other  the  same  of  the  lessee.     Wabash,  St.  Louis,  & 

duty  that  it  owes  to  its  own.     Illinois  Pacific   Railway   Co.    r.  Peyton,    106 

Central   Raih-oad   Co.  v.  Frelka,  110  111.  534. 

111.  498.     And  where  several  roads  use  (J)  Habitual  intemperance  known 

a  union  yard,  and  an  employe  of  one  to  the  company  is  a  ground  of  liabil- 

company  is  injured  on  the  cars  and  ity.     Chicago  &  Alton    Railroad  Co. 

track  of  another,  he  may  sue  either  v.  Sullivan,   63  111.  293.     And  proof 

company  or  both.     Gulf,  Colorado,  &  thereof  is  admissible  upon  the  ques- 

Santa  Fe  Railroad  Co.  v.  Dorsey,  25  tion    of  the   allowance  of  exemplary 

Am.  &  Eng.  Railw.  Cas.  446.     Where  damages.     Cleghorn  v.  New  York  Cen- 

a  company  has  a  right  to  run  its  cars  tral  &  lludson  River  Railroad  Co.,  56 

on  the  road  of  another  company,  the  N.  Y.  44. 
cars  while  on  such  road  to  be  under 

[*531]. 


§131  a.] 


PROOF   OF   NEGLIGENCE,    ETC. 


tlioiity  to  hire  and  superintend  such  servants  of  the  <;ompany  as 
may  be  necessary.  It  was  also  held  here  that  evidence  that  the 
flagman  was  commonly  reputed  to  be  an  habitual  drunkard,  in 
the  place  where  he  lived,  was  competent  evidence  for  tlic  jury  as 
tending  to  show  that  his  iutemj)crate  habits  should  have  been 
known  to  the  oflicers  of  the  company. 

14.  Where  the  negligence  of  the  employer  and  of  a  fcllow-.ser- 
vant  concur  in  producing  the  injury,  the  employer  is  liable;  as 
where  insuHicient  trestle-work  had  been  built  over  a  chasm  and 
the  engineer  was  directed  not  to  run  his  engine  upon  it,  but 
nevertheless  did,  and  the  fireman  was  killed  by  the  failure  of  the 
trestle-work,  the  company  was  held  responsible.-''  (^) 


SECTION   III 


Proof  of  Negligence^  ^c. 


1.  Injury  to  passenger  raises  a  presump- 

tion  of  want  of  due  care  on  tlie  part 
of  company. 

2.  That  presumption  may  be  rebutted. 


3.  Person  riding  on  a  pass,  or  in  tlio 
baggage-car,  may  iiave  an  action 
for  injuries  caused  by  want  of  due 
care,  if  a  passenger  and  free  from 
fault. 


§  131  rt.  The  following  propositions  were  declared  by  the  Su- 
preme Court  of  Missouri,  in  the  case  of  Hannibal  and  St.  Joseph 
Railroad  Company  v.  Ilattic  Iliggins,  by  Eliza  Iliggins,  her  guar- 
dian :  ^  — 

1.  The  statute  of  Missouri  giving  a^ remedy  to  the  representa- 
tives of  a  passenger  killed  upon  a  railway  train,  goes  upon  the 
same  principle  which  before  ol)taincd  in  regard  to  injuries  to 
passengers,  that  such  injury  or  death  pritna  facie  results  frou) 
want  of  due  care  in  the  company. 

28  Paulmie  v.  Erie  Railway  Co.,  5  Vroom,  151. 
*  5  Am.  Law  Keg.  n.  8.  715-721;  s.  c.  3G  ^lo.  41S. 

(k)  See    supra,    note    (h)        And  negligence    of    the    engineer  on    hi.s 

when  a  train-man  is  injured  in  colli-  train.     Gray  v.  Fhiladelphia  &  Rcad- 

sion  with  a  train  of  another  company,  ing   Railroad   Co.,   '22    Am.    &    Eng. 

he  is  not  precluded   from  recovering  Raihv.  Cas.  351. 
of  that  company  for  its  negligence  by 

[•531] 


576  LIABILITY    FOR    CONTRACTORS,    AGENTS,    ETC.        [PART   VI. 

2.  The  presumption  is  not  conclusive  under  the  statute,  but 
*  may  be  rebutted  by  evidence  of  the  cause  of  the  injury.  One 
who  had  been  in  the  employment  of  the  company  as  an  engineer 
and  brakeman,  until  his  train  was  discontinued  a  few  days  pre- 
vious, and  who  had  not  been  settled  with  or  discharged,  although 
not  actually  under  pay  at  the  time,  and  who  signalled  the  train 
to  take  him  up,  and  who  took  his  seat  in  the  baggage-car  with 
the  other  employes  of  the  company,  and  paid  no  fare  and  was 
not  expected  to,  although  at  the  time  in  pursuit  of  other  employ- 
ment, cannot  be  considered  a  passenger.  If  he  would  secure  the 
immunities  and  rights  of  a  passenger,  he  should  have  paid  his 
fare  and  taken  a  scat  in  the  passenger-car. 

3.  It  will  not  deprive  of  his  remedy  a  passenger  who  comes 
upon  the  train  in  that  character,  and  is  so  received,  that  he  is 
allowed  as  matter  of  courtesy  to  pass  free,  or  to  ride  with  the 
employes  of  the  road  in  the  baggage-car.  But  a  passenger  who 
leaves  the  passenger  carriages  to  go  upon  the  platforms  or  into 
the  baggage-car,  unless  compelled  to  do  so  for  want  of  proper 
accommodations  in  the  passenger  carriages,  or  else  by  permission 
of  the  conductor  of  the  train,  must  be  regarded  as  depriving 
himself  of  the  ordinary  remedies  against  the  company  for  injuries 
received,  unless  upon  proof  that  his  change  of  position  did  not 
conduce  to  the  injury.'-^  (a) 

2  The  opinion  in  the  case  last  cited  presents  several  interesting  practical 
points,  in  a  very  judicious  light.  It  is  sometimes  difficult  to  determine,  with 
exact  precision,  when  a  person  ceases  to  be  an  employe  and  becomes  a  passen- 
ger. There  is  perhaps  no  fairer  test  than  the  one  here  a[>plied,  that  is,  the 
person's  own  claim  and  conduct  at  the  time,  and  the  acquiescence  of  the  com- 
pany. At  the  time,  one  who  has  recently  been  in  the  employment  of  the 
company  has  a  motive  to  claim  the  privileges  of  the  employment,  by  passing 
without  the  payment  of  fare.  And  if  he  claims  the  privilege,  and  it  is  acceded 
to  by  the  officers  of  the  company,  there  is  great  injustice  in  allowing  the  per- 
son at  the  same  time  to  hold  the  company  to  the  higher  responsibility  which 
it  owes  to  passengers,  from  whom  it  derives  revenue.  Tt  should  therefore  be 
made  to  appear,  that  one  who  passes  in  the  character  of  an  employe  of  the 
road  was  really  a  passenger,  before  he  can  fairly  be  allowed  to  demand  the 
indemnity  which  passengers  may  by  law  require.  If  the  person  assumes  one 
character  for  his  advantage,  and  the  company  accede  to  the  claim,  he  ought 

(a)  An  employe  riding  to  his  work  eluded,  held  not  a  passenger.     Kansas 

according  to  custom  and  understand-  Pacific    Railway   Co.    v.  Salmon,    11 

ing  without  paying  fare,  in  a  caboose  Kan.  83. 
from  which  all  but  employe's  are  ex- 

[*532] 


§  132.]    DEFECTS   IN    HIGHWAYS   CAU.SKI)    IJY   COMPANY'S   WOUKS. 


♦SECTION    IV. 


Injuries  by  Defects  in  Hiijhiuaijs  caused  hij  Compamfs  Wurks. 


1.  Company  lialile  fcjr    injuries  caused 

by  leaving  streets  in  insecure  con- 
dition. 

2.  Municipalities  liable  primarily  to  trav- 

ellers suffering  injury. 

3.  Company  liable  over  to  municipality. 

4.  Towns   liable  to   indictment.     Com- 

pany liable  to  mandamus  or  action. 

5.  Construction  of  a  grant  to  use  streets 

of  a  city. 

6.  Such  grant  gives  the  public  no  right 

to  use  the  tracks. 


7.  Company  by  charter  required  go  to 

construct  road  as  not  to  obstruct 
highway,  bound  to  keep  highway 
in  rejiair. 

8.  Municipalities   not    responsible    fi>r 

injuries  resulting  from  proper  ex- 
ercise of  authority  to  occupy  street. 

9.  Canal   company    not  e.xcused    from 

maintaining  farm  accommodations 
by  railway  interference. 

10.  Railway  track  crossing  private  way. 

11.  Person     opening     company's     gates 

contrary  to   law  cannot   recover. 


§  132.  1.  Where  a  public  company  has  the  riijflit,  l»y  hiw,  of 
taking  np  the  pavement  of  the  street,  the  workmen  they  employ 

*  are  bound  to  use  such  care  and  caution  in  doing  the  work  as 
will  protect  the  king's  subjects,  themselves  using  reasonable  care, 

*  from  injury.  And  if  they  so  lay  the  stones  as  to  give  such  an 
appearance  of  security  as  would  induce  a  careful  jn'rson.  using 

*  reasonable  caution,  to  tread  u])on  them,  as  safe,  when  in  fact 
they  are  not  so,  the  company  will  be  answerable  in  damages  fur 
any  injury  such  person  may  sustain  in  consequence.*  (</) 

not  to  be  allowed  the  benefits  of  any  other  character,  unle.s.s  it  i.s  very  clear 
that  such  wa.s  his  real  position,  and  that  this  wa.s  understood  by  the  company. 
The  effect  of  free  pas.ses,  and  of  the  pas.senger's  being  out  of  hi.s  place  in  the 
carriages,  is  very  fairly  pre.sented,  and  the  principal  cases  are  referred  to  on 
all  the  points. 

^  Drew  r.  New  Rivov  Co.,  G  Car.  &  P.  7')t.  And  where  a  raihv.ny  com- 
pany, in  carrying  its  track  across  a  street,  leaves  the  cro.ssin^  in  .'*urli  a  stato 
that  a  horse's  foot  is  caught  in  the  crossing  and  badly  injured,  the  company  ia 
responsible,  and  the  fact  that  the  crossing  is  made  in  compliance  with  n  city 
ordinance  and  to  the  acceptance  of  the  city  engineer,  a.s  therein  reqnirc.l, 
affords  no  ground  of  defence.  Dclzell  f.  Indiana|K>lis  &  Cincinnati  Railroad 
Co.,  32  Ind.  45. 


(o)  Mann  v.  Central  Vermont  Rail- 
road Co.,  5.5  Vt.  -ISt;  South  &  North 
Alabama  Railroad  Co.  v.  Chappell,  Gl 
Ala.    5"27;    Farley   v.  Chicago,    Rock 
VOL.  I.  —  37 


Wand,  c«t  Pacific  Railroad  Co.,  \'2 
Imva,  2:11;  Cnddeback  r.  .lewott.  20 
I  Inn,  187;  Raughman  r.  .Shenango  & 
Allegheny  Railroad  Co.,  n'2  Penn.  St. 

[•533-*536] 


578  LIABILITY    FOR    CONTRACTORS.   AGENTS,   ETC.        [PART   VI. 

*  And  in  a  more  recent  casc,^  a  canal  and  railway  company,  as 
early  as  the  28  Geo.  2,  had  acquired  the  right,  by  act  of  parlia- 
ment, to  construct  a  canal  and  take  tolls  thereon,  and  had  built 
the  same  across  an  ancient  highway  near  St.  Helens,  a  small 
village,  and  had  made  a  swivel  bridge  across  the  canal  for  the 
passage  of  the  highway  ;  and  by  subsequent  acts,  reciting  the 
existence  of  such  works,  all  persons  were  to  have  free  liberty 
with  boats  to  navigate  the  canal  for  the  transportation  of  goods, 
and  penalties  were  imposed  upon  such  persons  as  should  leave 
open  the  drawbridges.  The  company  maintained  the  works  and 
received  a  toll  from  all  others  using  them.  A  boatman  having 
opened  the  swivel  bridge,  to  allow  his  boat  to  pass  tlirough,  in  the 
night-time,  a  person  walking  along  the  road  fell  into  the  canal 
and  was  drowned,  just  as  the  boat  was  coming  up.  When  the 
bridge  was  open  the  highway  was  wholly  unfenced.  Two  lamps 
had  formerly  been  kept  burning,  of  which  one  had  been  removed 
and  the  other  was  out  of  repair  at  the  time.  Tlie  jury  found 
that  the  deceased  was  drowned  by  reason  of  the  neglect  of  reason- 
able precautions  on  the  part  of  the  canal  company,  without  any 
fault  on  his  own  part.  Held  tliat  the  defendants,  having  a  benefi- 
cial interest  in  the  tolls,  were  liable  to  an  action,  the  same  as  any 
owner  of  private  property  would  be  for  a  nuisance  arising  there- 
from. That  the  bridge  being  in  the  possession  of  defendants,  the 
action  was  properly  brought  against  them  and  not  against  the 
boatman.  That  the  passing  the  subsequent  acts,  recognizing  the 
existence  of  the  bridge,  was  not  a  legislative  declaration  of  its 
sufficiency.  It  was  further  held,  that  even  if  tlie  bridge  had 
been  sufficient  at  the  time  of  its  erection,  it  was  the  duty  of  the 
company  so  to  alter  and  improve  its  structure,  from  time  to  time, 
as  at  all  times  to  maintain  a  bridge  sufficient,  with  reference  to  the 
existing  state  of  circumstances,  and  that  the  jury  were  warranted 
in  considering  the  bridge,  in  the  state  in  which  it  was,  insufficient. 

2  Manley  v.  St.  Helens  Canal  &  Railroad  Co.,  2  H.  &  N.  840. 

335.     And  a  railway  company  cannot  public  highways,  held  not  to  refer  to 

evade  its  duty  in  such  regaid  by  leasing  crossings  of  ways  regularly  travelled 

its  road,  without  consent  of  the  state,  for  more  than  fifteen  years,  but  not 

Freeman  r.  Minneapolis  &  St.  Louis  laid  out  under  statute  nor  set  apart  on 

Railway  Co.,  28  Minn.  iiS.     A  stat-  the  records  by  dedication.     Missouri, 

ute  requiring  companies  to  keep  in  Kansas,  &  Texas  Railway  Co.  v.  Long, 

repair  crossings  or  regularly  laid  out  27  Kan.  684. 

[*537J 


§  132.]    DEFKCTS   IN    IIIGIIWAY.S    CAUSED    BY    COMPANY'S   WORKS.    oTU 

2.  Unt  it  has  been  Im.'M,  that  where  such  companies,  havinj; 
the  power,  by  hiw,  to  cut  throiit^'h  and  alter  hiu'hwavH,  either 
temporarily  or  permanently,  do  it  in  such  a  manner  as  to  leave 
them  nnsafe  for  travellers,  who  in  consctiucnce  sustain  injnrv 
without  fault  on  their  i)art,  that  the  towns  or  cities  in  which  such 
highways  or  public  streets  arc  situated  are  ]»riniarily  liable-''  for 
all  such  injuries. 

3.  And  it  is  also  true  that  such  towns  or  cities  may  claim  an 
indemnity  against  the  railway  companies  who  arc  first  in  fault, 
and  in  such  action  recover  not  only  the  damages,  but  the  costs 
paid  by  them,  and  which  were  incurred  iu  the  reasonable  and 
necessary  defence  of  actions  brought  against  them  on  account 
of  the  defects  in  such  company's  works.''    *  And  where  the  injury 

8  Willaid  V.  Newbury,  22  Vt.  4.J8;  Batty  v.  Duxbury,  21  Vt.  1.j5;  Currier 
V.  Lowell,  16  Pick.  170;  Buffalo  v.  IloUoway,  li  Barb.  101.  In  the  last- 
iiamed  case  an  opinion  is  intimated,  that  a  contractor  for  such  works  is  not 
liable  to  make  such  precautionary  erections  as  may  be  requisite  to  puard  the 
public  against  injury,  no  such  provision  being  found  in  his  contract.  But  is 
not  that  a  duty  which  every  one  owes  the  public  in  all  works  which  lie  under- 
takes? In  Barber  v.  Essex,  27  Vt.  02,  it  is  held  that  towns  are  primarily 
liable,  and  that  an  old  highway,  which  a  railway  proposes  to  use  for  its  track, 
is  not  considered  as  discontinued  till  the  company  h;us  provided  a  substitute,  or 
unless  affected  by  some  other  definite  legal  act,  or  by  an  abandonment  by  legal 
authority,  or  nonuser,  and  that  towns  cannot  excuse  themselves  from  the  per- 
formance of  the  duty  by  showing  that  a  railway  company,  proceeding  under 
its  charter,  had  caused  the  defects  complained  of.  The  towns  are  bound  to 
watchfulness  upon  this  subject,  and  theirs  being  a  primary  resixjusibility,  tliey 
cannot  shift  it  upon  the  railway.  See,  also,  to  same  effect,  riiillips  v.  Veazie, 
■10  Me.  90.  The  obligation  upon  the  towns  to  make  highways  safe  and  con- 
venient for  travellers  continues  whf'u  they  are  crossed  by  railways  at  grade, 
except  so  far  as  the  necessary  use  of  the  crossing  by  the  railway  may  prevent 
it,  and  subject  to  such  specific  directions  as  may  be  given  by  the  county  com- 
missioners. Davis  c.  Leominster,  1  Allen,  1S2.  But  towns  are  not  liable  for 
obstructions  caused  by  telegraph  poles  wiiich  they  have  no  right  to  reinove. 
Young  (;.  Yarmouth,  0  (bay,  ;3SC.  The  railway  is  also  resixmsible  for  nil 
unlawful  obstructions  of  the  highway.  Parker  r.  lioston  &  Maine  ILiilroad 
Co.,  3  Cush.  1U7.  But  where  the  duty  of  maintaining  a  bridge  is  imiM>sed 
exclusively  upon  the  railway,  the  town  is  not  responsible  for  any  defert><  in  tlic 
same.  Sawyer  v.  Northfield,  7  Cush.  490.  See,  also,  Jones  i:  Wallhara. 
'1  Cush.  290;  Vinal  v.  Dorchester,  7  (Jray,  421. 

4  Lowell  i\  Boston  &  Lowell  Bailroad  Co.,  2:3  Pick.  24;  Newbury  r.  Con- 
necticut &  Passumpsic  Rivers  Railroad  Co.,  2.3  Vt.  377.  The  recovery  in 
these  cases  is  allowed  upon  the  ground,  that  the  wrong  is  altogellier  on  the 
part  of  the  company,  and  the  town,  standing  primarily  liable  to  the  public  for 

[•o:30J 


580  LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.       [PART    VI. 

did  not  accrue  for  more  than  six  years,  it  was  held  that  the  rail- 
way was  still  liable  to  indemnify  the  town,  notwitli^tanding  the 
bar  of  the  statute  (5f  limitations,  reckoning  the  cause  of  action 
as  accruing  at  the  date  of  the  neglect ;  and  that  it  did  •not  exon- 
erate the  company  guilty  of  the  neglect,  that  they  had  leased 
their  road  to  another  company  who  were  operating  it  at  the  time 
the  injury  occurred.^ 

4.  And  where  the  statute  provides  that  railways  "  shall  main- 
tain and  keep  in  repair  all  bridges,  with  their  abutments,  which 
they  shall  construct  for  the  purpose  of  enabling  their  road  to  pass 
over  or  under  any  road,  canal,  highway,  or  other  way,"  and  the 
company  omitted  to  perform  the  duty  in  the  manner  required 
for  the  public  safety,  it  was  held  that  the  town  within  which  the 
road  lay,  were  liable  to  indictment  for  not  keeping  it  in  safe 
repair,  and  that  they  may  compel  the  railway  company  to  make 
all  such  repairs  as  may  be  necessary,  by  writ  of  mandamus ;  or 
if  they  have  been  obliged  to  make  expenditures  therein,  may 
reimburse  themselves  by  an  action  on  the  case  against  the 
company.^ 

5.  And  where  a  railway  company  were  authorized  by  the  legis- 
lature to  construct  and  operate  their  road  through  the  streets 
of  a  city,  and  the  city  government  assented  to  the  location  and 
construction  upon  a  designated  route,  on  certain  conditions,  it 
was  held  that  the  municipal  authority  had  no  power  by  resolution 
to  annul  or  impair  the  grant  to  the  company  on  account  of  its 
failure  to  complete  the  road  within  the  time  limited  in  the  con- 
ditions annexed  to  their  assent ; '''  and  that  such  condition  was 


the  sufficiency  of  the  highways,  and  being  virtual  guarantors  against  the  neg- 
ligence of  the  railway  company,  may  therefore  recover  of  the  company  an 
indemnity,  not  only  for  the  damages  they  are  compelled  to  pay,  but  also  for 
the  costs  and  expenses  incurred  by  them  in  defending  bona  fide  against  suits 
brought  against  them  for  the  default  of  the  company.  Dusbury  v.  Vermont 
Central  Railroad  Co.,  26  Vt.  751,  752,  753;  Hayden  v.  Cabot,  17  Mass.  168; 
llamden  v.  New  Haven  &  Northampton  Co.,  27  Conn.  158. 

6  Hamden  v.  New  Haven  &  Northampton  Co.,  27  Conn.  158.  But  where 
the  company  has  the  right  to  lay  its  rails  in  the  street,  it  is  not  responsible 
for  any  injury  resulting  therefrom  to  others,  unless  it  has  been  in  fault  either 
in  laying  them  down  or  in  keeping  them  safe.  Mazetti  v.  New  York  & 
Harlem  Railroad  Co.,  3  E.  D.  Smith,  98;  infra,  §  225,  pi.  7. 

«  State  V.  Gorbam,  37  Me.  451. 

•^  Brooklyn  Central  Railroad  Co.  v.  Brooklyn  City  Raih'oad  Co.,  32  Barb.  358. 
[*039] 


§132.]    DEFECTS    IN    IIIGIIWAY.S    CAUSED    BY    COMPANY'H   WORKS,    jbl 

not  to  be  regarded  as  precedent  to  the  vesting  of  the  estate  or 

francliisc,  but  only  a  condition  subsccjuent,  upon  the  non-perform- 
ance of  which  the  grantor  might  elect  to  defeat  it,  but  thiii  noth- 
ing short  of  a  judicial  determination  would  operate  to  divest  the 
interest  of  the  company." 

*  G.  AVhere  a  railway  has  been  laid  upon  a  public  street,  it  does 
not  thereby  become  public  property,  in  such  a  sense  as  to  entitle 
the  public  at  large  or  other  railsvay  comjjanies  to  use  the  track 
for  the  passage  of  carriages  constructed  for  such  use."  Nor  will 
the  permission  of  the  municipal  authorities  for  that  purpose  give 
any  such  riglit.'^ 

7.  Where  a  railway  company  is  required  to  construct  its  road 
so  as  not  to  obstruct  the  safe  and  convenient  use  of  the  highway, 
this  is  a  continuing  obligation  requiring  the  company  to  so  main- 
tain their  road  as  to  leave  the  highway  safe  and  convenient  for 
public  use  ;  but  this  will  not  exonerate  the  towns  from  their 
primary  responsibility.^  (i) 

8.  Cities  or  towns  are  not  liable  for  damages  resulting  from 
the  projjcr  exercise  of  authority  in  permitting  railway  tracks  to 
be  laid  in  the  streets,  or  in  raising  the  grade  of  streets,  unless 
they  exceed  their  lawful   authority  in  this  respect.^      And  it  is 

But  a  railway  company  has  no  such  interest  in  tiie  street  when  its  line  is  laid 
as  to  entitle  it  to  maintain  an  injunction  against  another  company,  fur  laying 
its  track  in  the  same  street,  but  not  so  as  to  interfere  with  its  use  l)y  the  former 
company.  New  York  &  Harlem  Railroad  Co.  v.  Forty-second  Street  &  Grand 
Street  Ferry  Co.,  50  IJarb.  285,  'M). 

8  Wellcome  v.  Leeds,  51  Me.  31:}.  The  case  of  Kearney  v.  London,  Brigh- 
ton, &  South  Coast  Railway  Co.,  Law  Rep.  5  Q.  B.  Ill,  presented  a  vt-ry 
unusual  question.  The  plaintiff  while  passing  along  tlio  highway  under  a 
bridge  of  the  defendant  was  injured  by  the  falling  of  a  brick  from  the  works 
supporting  the  bridge,  which  it  wa.s  supposed  might  have  become  loose  from 
the  jar  of  passing  trains.  The  majority  of  the  court  hold  the  defendant 
responsible,  and  the  judgment  wiis  alDrraed  in  tlie  Exeluviuer  C'hamlHjr,  0 
Law  Rep.  6  Q.  B.  759.  Here  Kelly,  C.  B  ,  said  tliat  the  fact  tiiat  the 
brick  fell  was  satisfactory  evidence  that  it  liad  het'u  loosened  before,  "and  it 
was  the  duty  of  the  defendants  from  time  to  time  to  insfn-ct  the  hridgo  autl 
ascertain  that  the  brick-work  was  in  good  order  and  all  tiie  bricks  well  se- 
cured." 

9  Murphy  v.  Chicago,  29  111.  270. 

(b)  And  if  the  company  build  a  does  not  become  inadequate  to  in- 
bridge  over  a  highway,  it  must  see  creaseil  use.  Cooke  r.  Ii<xston  &  Low- 
that  though  adequate  when  built,  it     ell  Railroad  Co.,  133  "Slas^s.  1S5. 


582  LIABILITY    FOR    CONTRACTORS,    AGENTS,   ETC.        [PAUT   VI. 

here  said  to  be  a  legitimate  use  of  a  street  to  allow  a  railway 
track  to  bo  laid  in  it. 

9.  Where  a  canal  company  had  constructed  a  bridge  as  part 
of  the  farm  accommodations  of  an  adjoining  land-owner  which 
the  company  were  bound  to  maintain,  and  a  railway  company  by 
subsequent  legislative  grant  had  laid  its  track  along  the  line  of 
the  canal,  and  in  consequence  had  been  compelled  to  alter  the 
construction  of  the  bridge  so  as  to  render  it  more  expensive  to 
maintain  the  same,  it  was  held  tlie  canal  company  were  not 
thereby  exonerated  from  maintaining  the  bridge,  but  were  liable 
to  the  land-owner  the  same  as  before  the  alteration  by  the  railway 
company,  notwithstanding  any  liability  which  might  rest  upon 
the  railway  company.^*^ 

10.  Wliere  a  railway  crossed  on  a  level  a  considerably  fre- 
quented footpath,  and  there  was  no  servant  of  the  company  at 
the  crossing  to  warn  persons  of  the  approach  of  the  trains,  the 
view  being  somewhat  obstructed  by  the  pier  of  the  bridge,  but 
a  person  before  reaching  the  track  could  see  nearly  three  hundred 
yards  either  way  along  the  line,  and  the  plaintiff's  wife,  while 
crossing  the  line  at  the  spot  was  run  over  and  killed,  it  was  held 
that  the  fact  of  the  company  not  keeping  a  servant  at  the  crossing 
to  warn  *  persons  of  the  approach  of  trains,  was  not  evidence  of 
negligence  to  go  to  the  jury.^^ 

11.  And  where  it  was  made,  by  statute,  the  duty  of  a  railway 
company  to  maintain  gates  at  all  level  crossings  of  highways, 
and  to  have  persons  to  open  and  shut  them  when  any  one  wished 
to  pass,  but  at  all  other  times  they  were  to  be  kept  shut,  and  a 
person  coming  along  the  highway  when  no  servant  of  the  com- 
pany was  present,  as  he  should  have  been,  to  open  and  shut  the 
gates,  the  plaintiff  having  waited  a  reasonable  time  opened  the 
gates  himself  in  order  that  he  might  be  able  to  proceed  on  his 
journey,  and  in  doing  so  was  injured  by  the  closing  of  the  gates, 
which  were  so  constructed  as  to  fall  back  into  their  places  with 
their  own  weight,  it  was  held  the  action  would  not  lie,  one  judge 
dissenting.^     This  case  was  decided    mainly  upon    the  ground 

^°  Animermon  v.  Wyoming  Land  Co.,  40  Penn.  St.  25G. 

'1  Stapley  v.  London,  Brighton,  &  South  Coast  Railway  Co.,  Law  Rep.  1 
Exch.  21;  s.  c.  11  Jur.  n.  s.  9.54. 

12  Wyatt  V.  Great  Western  Railway  Co.,  0  B.  &  S.  709;  s.  c.  11  Jur.  n.  s. 
82.1. 

[^=541] 


§133.]       LIABILITY    von    INJUUIKS    IN    TIIK    NATlMii:    ol'    KiUT-;.  'jR.'t 

that  by  the  act  of  j)ailiamciit  rc(iuiiin^'  the;  pit'  .s  to  he  kij,t 
closed,  except  wlieu  opeiu'd  hy  the  servants  of  lh<'  coini)any,  it 
ainoiinted  to  a  virtual  jii'ohildtiou  uf  any  one  crossinj^  the  rail- 
way at  any  other  time,  and  if  the  plaintilT  found  no  servant  of 
the  company  to  open  the  gate,  it  was  his  duty  to  wait  until  he 
could  find  one,  and  seek  liis  remedy  for  the  delay  against  the 
company  ;  and  being  a  wrong-doer  in  opening  the  gate,  he  could 
not  recover  of  the  company  for  any  injury  he  tliereby  sustained. 


SECTION   V. 


Liability  for  Injuries  in  the  Naturr  of  Turtx. 


\ 


1.  Railway  crossings  on  a  level  always 

dangerous.     Need  of  legislation. 

n.  (a)    Conduct    required  of  company 

and  traveller  at  such  crossings. 

2.  Company  not  excused  from  tlie  exer- 

cise of  care  by  use  of  the  signals  re- 
quired by  statute. 

3.  Traveller  cannot  recover  if  his  own 

act  contributed  to  his  injury. 

4.  Unless  company  might  have  avoided 

the  injury. 

5.  Omission  of  proper  signals  will  not  ren- 

der company  liable,  unless  it  pro- 
duces the  injury. 
G.    Company  not  liable  for  injury  to  tres- 
passing cattle,  unless  guilty  of  wil- 
ful wrong.  , 

7.  General  rule  requires  of  company  the 

conduct  of  skilful,  prudent,  and  dis- 
creet persons. 

8.  Action  accrues  from  the  doing  of  the 

injury. 


9.  Where  injury  is  wanton,  jury  may 
give  exemplary  damatjes. 

10.  Traveller  wiio  follows  dirtction  of 
gate-keeper  excused. 

n.  Company  responsible  for  injury  when 
the  crossing  is  opened  by  tlagman. 

12.  Responsibility  of  company  for  dam. 
ages  maitdy  matter  of  fact,  each 
case  depending  on  its  peculiar  cir- 
cumstances. 

10.  Company's  right  of  way,  sjKcd,  negli- 

gence, &c. 

11.  Company    may    establish    and     use 

projier  and  necessary  signals,  e.  g., 

by  whistles  in  the  conduct  of  ita 

business. 
15.    Duty  of  company  in  driving  trains 

in  a  city,     rresumption  of  ncKU- 

gcnce. 
10.  Company    responsible     for    dnnjage 

caused   by  needless  K  ttim;  off  of 

steam. 


§  133.  1.  We  have  discussed  the  subject  of  this  chapter,  in 
*  general,  in  other  sections.^  We  shall  Ikmv  refer  to  some  cases, 
where  railway  companies  have  been  luld  liable  for  injuries  to  |>or- 
sons  in  no  way  connected  with  them  by  contract  or  duty.     Ihe 


Supra,  §  130,  infni,  10:]. 


[•o42J 


584 


LIABILITY    FOR   CONTRACTORS,   AGENTS,   ETC.        [PART   VI. 


subject  of  railway  crossings,^  on  a  level  with  the  highway,  (a)  has 
been  before  alluded  to,  as  one  demanding  the  grave  consideration 

2  Supra,  §  108. 


(a)  The  company  is  liable,  of 
course,  for  any  negligence  in  the 
management  of  a  train,  &c.,  by  rea- 
son of  which  one  is  injured  at  such 
a  crossing.  There  must  be  a  lookout 
on  the  engine,  more  or  less  vigilant 
according  to  the  chances  of  access  to 
the  track.  East  Tennessee,  Virginia, 
&  Georgia  Railroad  Co.  v.  White,  5 
Lea  Tenn.  510 ;  Marcott  v.  Marquette, 
Houghton,  &  Ontonagon  Railroad  Co., 
47  Mich.  1.  In  general,  there  is  no 
fixed  limit  to  the  rate  of  speed,  no 
rate  being  negligence  per  se.  Powell 
V.  Missouri  Pacific  Railway  Co.,  76 
Mo.  80;  Hannibal  &  St.  Joseph  Rail- 
road Co.  V.  Young,  79  Mo.  336.  But 
unusual  speed  may  be  considered  in 
determining  the  degree  of  care  used. 
Salter  v.  Utica  &  Black  River  Rail- 
road Co.,  88  N.  Y.  42;  Terre  Haute 
&  Indianapolis  Railroad  Co.  i'.  Clark, 
73  Ind.  168.  And  high  speed  without 
warning  across  a  much  travelled  pub- 
lic street  in  a  village  where  there  are 
obstructions  to  seeing,  is  negligence. 
Loucks  V.  Chicago,  Milwaukee,  &  St. 
Paul  Railway  Co.,  31  Minn.  526.  And 
where  the  rate  is  regulated  by  statute, 
to  exceed  that  rate  will  render  the 
company  liable  for  any  accidents. 
Wabash  Railroad  Co.  v.  Ilenks,  91 
111.  406.  And  in  cities  or  populous 
towns  the  speed  must  be  lessened. 
Pennsylvania  Railroad  Co.  v.  Lewis, 
79  Penn.  St.  33.  A  w^arning,  too, 
should  be  sounded,  either  by  the  whis- 
tle or  by  the  bell.  Smedis  v.  Brook- 
lyn &  Rockaway  Beach  Railroad  Co., 
88  N.  Y.  13;  Philadelphia  &  Reading 
Railroad  Co.  v.  Killips,  88  Penn.  St. 
405;  Pennsylvania  Railroad  Co.  v. 
Krick,  47  Ind.  368.  But  in  Brown  v. 
[*542] 


]\lilwaukee  &  St.  Paul  Railway  Co., 
22  Minn.  105,  it  is  held  not  so  with- 
out a  statute  so  providing.  And  in 
Chicago,  Burlington,  &  Quincy  Rail- 
road Co.  V.  Harwood,  90  111.  425,  and 
Parker  v.  Wilmington  &  Weldon  Rail- 
road Co.,  86  N.  C.  221,  it  is  held  that 
omission  of  the  warning  will  not  ren- 
der the  company  liable  unless  it  ap- 
pears that  a  warning  would  have  pre- 
vented the  injury.  See  Rosenberger  v. 
Grand  Trunk  Railway  Co.,  8  Out. 
Ap.  482;  Grand  Trunk  Railway  Co. 
V.  Rosenberger,  6  Supr.  Ct.  Can.  8. 
But  the  cases  are  numerous  which 
hold  that  the  omission  raises  a  ques- 
tion of  negligence  for  the  jury.  A 
sign-board  at  a  crossing  is  often  re- 
quired by  statute.  But  if  not  required 
its  omission  may  be  negligence.  Bal- 
timore &  Ohio  Railroad  Co.  v.  Whit- 
acre,  35  Ohio  St.  627 ;  Shaber  v.  St. 
Paul,  Minneapolis,  &  Manitoba  Rail- 
way Co.,  28  Minn.  103.  But  its 
omission  is  not  a  ground  of  liability 
if  the  traveller  knew  or  in  the  exer- 
cise of  ordinary  care  might  have 
known  of  the  crossing.  Gulf,  Colo- 
rado, &  Santa  Fe  Railroad  Co.  v. 
(ireenlee,  62  Tex.  344.  In  general,  a 
company  is  not  bound  to  keep  a  flag- 
man at  crossings.  Delaware,  Lacka- 
wanna, &  Western  Railroad  Co.  v. 
Toffey,  38  N.  J.  Law,  525;  Welsch  r. 
Hannibal  &  St.  Joseph  Railroad  Co., 
72  Mo.  451.  At  dangerous  crossings 
both  parties  must  exercise  more  than 
ordinary  care.  Wabash,  St.  Louis,  & 
Pacific  Railway  Co.  v.  Wallace,  110 
111.  114;  New  York,  Lake  Erie,  & 
Western  Railroad  Co.  v.  Randel,  47 
N.  J.  Law,  144;  Coddington  v.  Brook- 
lyn Cross  Town  Railroad  Co.,  20  Am. 


§  133.]       LIABILITY    FOR   INJURIES   IN   TIIK   NATURE   OK   TOUTS.        585 

of  the  legislatures  of  the  several  states.  It  causes  always  a  most 
painful  sense  of  peril,  especially  where  there  is  any  cunsideiable 
travel  upon  the  highway,  and  is  followed  by  many  painful  scenes 
of  mutilation  and  death,  under  circumstances  more  distressing, 
if  possible,  than  even  the  accidents,  so  destructive  sometimrs  to 
railway  passengers. 

2.  In  a  case^  where  the  plaintiff  was  injured  at  a  railway 
crossing,  by  collision  with  an  engine,  it  was  held  that  where  the 
statute  required,  at  such  points,  certain  specified  signals,  the  com- 
pliance with  the  requirements  of  the  statute  will  not  excuse  the 
company  from  the  use  of  care  and  prudence  in  other  respects.  (/<) 
That  it  is  not  necessarily  enough  to  excuse  the  company,  that 

3  Bradley  i'.  Boston  &  Maine  llailroad  Co.,  2  Cush.  539.  Some  dLitinction 
was  here  made  at  the  trial  between  cases  of  negligence  which  occur  in  long- 
established  modes  of  business,  and  the  case  of  the  management  of  railway 
trains,  the  judge  saying  that  in  the  former  case  usage,  if  uniform  and  acqui- 
esced in  by  the  public,  may  amount  to  a  rule  of  law,  but  not  in  a  business  so 
recent  as  the  management  of  railway  trains.  This  view  seems  to  be  sanc- 
tioned by  the  Supreme  Court  in  revising  the  case.  See,  also,  Briggs  v.  Tay- 
lor, 28  Vt.  185;  s.  c.  2  Redf.  Am.  Kailw.  Cas.  558;  Linfield  v.  Old  Colony 
Railroad  Co.,  10  Cush.  502.  But  railways  are  not  bound  to  make  the  signals 
required  at  road-crossings  for  the  benefit  of  persons  walking  on  their  track 
two  hundred  feet  from  the  crossing.  Ilarty  v.  New  York  Central  Railroad 
Co..  42  N.  Y.  468. 

&  Eng.  Railw.  Cas.  393.     As  to  what  Grethen    r.   Chicago,    Milwaukee,   & 

is  negligence  on  the  part  of  the  com-  St.  I'aul  Railway  Co.,  19  Am.  &  Kng. 

pany,  the   cases   are   very  numerous,  ILiilw.  Cas.  'M2. 

too  numerous  to  be  here  summarized.  (A)   Particularly  in  cities  and  popu- 

Contributory  negligence  here  has  its  lous  villages.     Zimmer  «.  New  York 

usual  effect,  except  where  the  negli-  Central  &  Hudson  River  Railroad  Co., 

gence  of  the  company  is  very  gross,  07  N.  Y.  001.     But  the  company  has 

where   the   plaintiff   may   recover,   if  precedence  at  the  crossing.     Indian- 

his  negligence   is   slight.      Manly   v.  ajxjlis   &  Vincennes   Railro;i«l  Co.   r. 

Wilmington  &  Weldon  Railroad  Co.,  McLin,    82    Ind.    433.     And    is    not 

74  N.  C.  055;    Illinois  Central  Rail-  bound  to  stop  a  train  for  a  jHJrson  on 

road  Co.  v.  Hammer,  85  111.  520.     See  the   track   unless  there  is  reason  to 

Rine  v.  Chicago  &  Alton  Railroad  Co.,  think  the  person  under  .so?no  disabil- 

25  Am.  &  Eng.  Railw.  Cas.  545;  Chi-  ity.     Freck  r.  riiiladelphia.  Wihning- 

cago  &  Eastern  Illinois  Railroad  Co.  ton,  &  Baltimore  RailrtK-ul  Co..  3!>  .M.I. 

V.  Hedges,  lb.  550;  Central  Railroad  574.    International  vS:  (ircat  Nortln-rn 

Co.  V.  Brinson,  70  Ga.  207.     To  walk  Railway  Co.  v.  Smith,  19  Am.  &  Eng. 

on   the   track   is   contributory   negli-  Railw.  Cas.  21.     The  compjiny  ni-iy 

gence.       Maryland    v.    Baltimore    &  in  general  suppose  the  person  will  get 

Potomac  Railroad  Co.,  58  Md.  482;  off.     lb. 

[•542] 


586  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.        [PART   VI. 

they  pursued  the  usual  course  adopted  by  engineers  in  such  cases. 
The  question  of  negligence  is  one  of  fact,  in  such  cases,  to  be  sub- 
mitted to  the  jury,  under  all  the  circumstances  of  the  case,  and 
to  be  determined  by  them,  upon  their  view  of  what  prudence  and 
skill  required. 

3.  But  when  the  statute  requires  certain  precautions  against 
accidents,  and  its  requirements  are  disregarded,  the  party  suffer- 
ing damage  is  not  entitled  to  recover,  if  he  was  himself  guilty  of 
negligence  which  contributed   to   the  damage.*  (c)     And  where 

*  Parker  v.  Adams,  12  Met.  415;  Eckert  v.  Long  Island  Railroad  Co.,  57 
Barb.  555.  But  in  this  last  case  it  was  held,  that  one  who  rushes  before  a 
train  to  save  the  life  of  a  child  is  not  precluded  from  recovering  for  the  damage 
suffered  by  the  negligence  of  the  company  by  reason  of  his  own  conduct;  infra, 
§  193;  Macon  &  Western  Railroad  Co.  v.  Davis,  18  Ga.  G79,  where  the  ques- 
tion of  negligence  in  the  conductors  of  a  railway  train  in  passing  a  road-cross- 
ing, is  held  to  be  one  of  fact  depending  on  tlie  circumstances  of  each  particular 
case.  Dascomb  v.  Buffalo  &  State  Line  Railroad  Co  ,  27  Barb.  221.  But  the 
omission  of  any  statute  duty  by  railway  companies  at  the  time  and  place  where 
an  accident  occurs  is  prima  facie  evidence  of  liability.  Augusta  &  Savannah 
Railroad  Co.  v.  McElraurry,  21  Ga.  75.  In  Johnson  v.  Hudson  River  Rail- 
road Co.,  G  Duer,  633,  where  the  plaintiff's  husband  was  killed  in  the  streets 
of  the  city  of  New  York  by  one  of  defendant's  freight-cars  in  the  night- 
time, it  being  very  dark,  the  company  using  neither  lights  nor  bells  to  guard 
against  accident,  it  was  held,  that  although  the  law  required  of  defendant  only 
ordinary  care  towards  the  deceased,  it  should  be  measured  by  the  degree  of  peril 
against  w'hich  such  care  was  to  be  exercised,  which  in  the  circumstances,  was 
such  as  to  justify  the  court  in  telling  the  juiy  that  defendant  was  required  to 
use  every  precaution  in  its  power  to  insure  the  safety  of  persons  passing;  that  if 
lights  or  bells  would  have  contributed  to  that  end,  it  was  culpable  for  not  using 
them.  It  wafe  also  held  that  the  deceased  was  bound  to  the  exercise  of  only  ordi- 
nary care,  and  that  his  being  found  on  the  track  was  not  sufficient  ground  to  pre- 
clude recovery.  In  the  case  of  Wakefield  v.  Connecticut  &  Passumpsic  Rivers 
Railroad  Co.,  37  Yt.  330,  it  was  held,  tliat  the  requirements  of  the  statute  in  re- 
gard to  blowing  the  whistle  and  ringing  the  bell,  a  prescribed  distance  before 
crossing  the  highway,  was  a  duty  of  the  company  not  only  in  reference  to  trav- 
ellers about  crossing  the  track  of  the  railway,  but  with  reference  to  all  persons, 
who  being  lawfully  at  or  in  the  vicinity  of  the  crossing,  are  exposed  to  accident 
or  injury  by  reason  of  the  passing  train,  short  of  actual  contact  with  it.  And  it 
is  further  said  here,  that  although  there  might  be  cases  in  which  the  company 
w^ould  be  excused  from  a  strict  compliance  with  the  statute,  and  might  be  jus- 
tified in  omitting  the  signals,  in  all  cases  of  such  omission,  -where  damage 
ensued  in  consequence,  the  company  must  show  that  it  was  justified  in  the 

(c)  Shaw  V.  Jewett,  86  N.  Y.  610;     Co.,  .52  Cal.  602;  Chicago,  Burlington, 
Meeks  v.   Southern    Pacific   Railroad     &  Quincy  Railroad  Co.  v.  Lee,  68  111. 
[*o42] 


§  lu3.]     LiAr.iLiTY  roil  INJURIES  IX  THE  nati;i;e  of  Touts.      ;js7 

the  *  plaintiffs  farm  was  intersected  by  the  line  of  a  railway  and 
he,  with  a  wa^ion  and  one  horse,  having  his  son  and  a  servant 

omission.  Tiiis  is  a  loose  view  of  a  peremptory  statutory  requireiueiit,  that 
the  party  is  to  exercise  a  discretion  wlieii  to  comply.  As  a  rule,  the  party  uiuy 
omit  any  such  requirement  at  th(3  peril  of  all  legal  conseciueuces.  But  the 
court  scom  to  suppose  tiiat  the  statute  in  imposing  a  penalty  for  the  "  unreas- 
onable "  omission  of  such  signals  must  have  contemplated  cases  of  reasonable 
omission.  Tliat  may  be  so;  but  it  would  be  more  satisfactory  to  find  such  an 
important  qualification  of  the  leading  provisions  of  the  statute,  more  explicitly 
declared.  Such  construction  could  hardly  be  safely  applied  to  these  statutes 
generally.  It  would  result  in  a  virtual  re['eal  or  disregard  of  the  statute.  It 
would  be  far  more  salutary  to  have  the  engineer  understand  that  he  has  hq 
discretion  in  the  matter,  that  he  must  give  the  signals  regardless  of  con.se- 
quences.  In  an  important  case,  Shaw  v.  Boston  &  Worcester  Railroad  Co., 
8  Gray,  45,  the  subject  of  injuries  at  railway  and  highway  intersections  is  a 
good  deal  discussed.  Infra,  §  133,  pi.  9,  &  note.  It  is  there  decided  that  the 
record  of  the  county  commissioners  stating  that  in  their  opinion  no  flagman  at 
the  crossing  was  necessary,  is  not  competent  to  show  due  care  on  the  part  of 
the  conipany  in  omitting  that  precaution.  The  court  said  it  was  the  duty 
of  the  judge  in  charging  the  jury  to  distinguish  between  such  circumstances  as 
could  have  been  reasonably  anticipated,  and  such  as  would  have  required 
extraordinary  precautions,  but  were  of  so  extraordinary  a  character  as  not  to 
have  been  anticipated.  It  was  also  held  that  the  degree  of  care  required  of 
the  company  and  travellers,  at  a  railway  and  highway  crossing,  is  the  same, 
being  that  which  men  of  ordinary  capacity  would  exercise  under  like  circum- 
stances. The  fact  that  a  collision  occurred  at  a  railway  crossing,  and  that  the 
plaintiff  was  in  no  fault,  is  not  proof  that  the  defendant  was  in  fault.  As  to 
crossing  private  way,  see  Cliff  v.  Midland  Railway  Co.,  Law  Rep.  5  t^.  B.  *25S. 
The  opinion  of  ^Ielloij,  J.,  affords  a  valuable  commentary  on  what  may 
be  considered  negligence  on  the  part  of  the  railway.  1  Redf.  Am.  Railw.  Cas. 
G69. 

57G;  Harlan  I'.  St.  Louis,  Kansas  City,  Maryland  Central  Railroad  Co.  r. 
&  Northern  Railroad  Co.,  Gl  Mo.  48l).  Newbern,  19  Am.  ivc  Kng.  Railw  Cas. 
In  approaching  a  crossing  one  is  bound  201;  Lesan  v.  Maine  Central  Railroad 
to  exercise  such  caution  as  a  prudent  Co.,  77  Me.  85;  Berry  v.  IVnnsylvania 
man  would  exercise  in  such  ca.se,  but  Railroad  Co.,  2G  Am.  &  Eng.  Rnihv. 
just  what  a  person  injured  should  have  Cas.  3!)0.  And  if  for  any  reason  the 
done  is  in  general  a  question  for  a  traveller  can  do  but  one,  the  duty  to  do 
jury.  Philadel[)hia  &  Reading  Rail-  tliat  is  all  the  more  urjjent  Mynninij 
road  Co.  v.  Carr,  99  Penn.  St.  50");  r.  Detroit,  Lansing.  .*t  Northern  Rail- 
Texas  &  Pacific  Railway  Co.  v.  Chap-  road  Co..  23  Am.  &  Eng.  Railw.  Cas. 
man,  57  Tex.  75.  Travellers  approach-  317.  And  failure  of  the  company  to 
ing  a  crossing  should,  in  general,  look  give  warning  will  not  excuse  the  trav- 
and  listen  for  approaching  trains,  eller.  Hamilton  &  Indianaix)lis  Rail- 
Holland  V.  Chicago,  Milwaukee,  &  St.  road  Co.  r.  Butler.  23  Am.  &  Enir. 
Paul  Railway  Co.,  IS  Fed.  Rep.  213;  Railw.  Cas.  202.     The  company  and 

[•543] 


588 


LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.        [PART   VI. 


with  *  him,  drove  upon  a  trot  directly  over  the  track  at  a  jjublic 
crossing,  without  takhig  tlic  slightest  precaution  to  ascertain 
whether  a  locomotive  was  coming,  it  was  held  that  he  was  guilty 
of  great  carelessness,  (c^)  and  that  he  could  not  recover  for  any 
damage  he  had  sustained,  and  that  it  was  immaterial  whether  the 
train  was  on  time  or  not.  It  was  also  held,  that  the  question  of 
negligence,  in  a  case  of  this  character  where  the  testimony  was 


the  traveller  have  equal  rights,  but 
the  company  has  the  right  of  way. 
Lesau  v.  Maine  Central  Railroad  Co., 
77  Me.  85.  But  held  not  to  apply  to 
pedestrians.  Zimmerman  v.  Hannibal 
&  St.  Joseph  Railroad  Co.,  71  Mo. 
476.  It  is  not  necessarily  negligence 
to  ride  wrapped  up  to  protect  one's  self 
from  the  weather.  Salter  v.  Utica  & 
Black  River  Railroad  Co.,  59  N.  Y. 
031.  Nor  to  keep  up  the  top  of  a 
buggy.  Stackus  v.  New  York  Central 
&  Hudson  River  Railroad  Co.,  79  N.  Y. 
401.  Nor  to  attempt  to  cross  after 
notice  that  the  crossing  is  unsafe  by 
reason  of  disrepair.  Kelly  v.  Southern 
Minnesota  Railway  Co.,  28  Minn.  98. 
Nor  to  trot  a  team  to  within  a  rod  of 
the  crossing  without  stopping  to  listen. 
Eilert  v.  Green  Bay  &  Minnesota  Rail- 
road Co.,  48  Wis.  606.  But  it  is  to 
attempt  to  drive  across  in  full  view  of 
an  approaching  train.  Chicago,  Rock 
Island,  &  Pacific  Railroad  Co.  v. 
Bell,  70  111.  102;  Gothard  v.  Alabama 
Great  Southern  Railroad  Co.,  67  Ala. 
114.  Nor  is  it  necessarily  negligence 
to  leap  from  a  vehicle  where  there  is 
imminent  danger  of  a  collision.  Dyer 
V.  Erie  Railway  Co.,  71  N.  Y.  228. 
As  to  what  will  be  deemed  contribu- 
tory negligence  in  certain  cases,  see 
Parker  v.  Wilmington  &  Weldon  Rail- 
road Co.,  86  N.  C.  221 ;  Kansas  Pacific 
Railway  Co.  v.  Twombly,  100  U.  S. 
78;  Inger.soll  v.  New  York  Central  & 
Hudson  River  Railroad  Co.,  06  N.  Y. 
612 ;  Philadelphia  &  Reading  Railroad 
[*544] 


Co.  V.  Carr,  99  Penn.  St.  505;  Craig 
V.  New  York,  New  Haven,  &  Hartl'ord 
Railroad  Co.,  118  Mass.  431;  Cliicago 
&  Northeastern  Railway  Co.  v.  Miller, 

46  Mich.  532;  Haas  v.  Grand  Rapids 
&  Indiana  Railroad  Co.,  47  Mich.  401. 
The  traveller  is  not  relieved  from  the 
duty  of  taking  due  care  by  the  fact 
that  the  train  is  behind  time.  Salter 
V.  Utica  &  Black  River  Railroad  Co. , 
75  N.  Y.  273. 

(</)  Cases  differing  from  this  in  no 
essential  particular  except  as  to  the 
degree  of  care  used  by  the  injured 
person  are  numerous.  In  the  follow- 
ing cases  the  person  was  held  to  be 
negligent.  Schofield  v.  Chicago,  Mil- 
waukee, &  St.  Paul  Railway  Co.,  2 
McCrary,  268;  Kearney  v.  Chicago, 
Milwaukee,  &  St.  Paul  Railway  Co., 

47  Wis.  144;  Purl  v.  St.  Louis,  Kan- 
sas City,  &  Northern  Railway  Co.,  72 
Mo.  168;  Stackus  v.  New  York  Cen- 
tral &  Hudson  River  Railroad  Co.,  7 
Hun,  559.  And  see  Mitchell  v.  New 
York  Central  &  Hudson  River  Rail- 
road Co.,  64  N.  Y.  655.  There  is 
also  a  number  of  cases  in  which  one 
has  been  held  negligent  in  not  seeing 
trains  or  parts  of  trains  immediately 
following  others,  and  so  in  going  on 
the  track  after  the  passage  of  one  and 
before  that  of  another.  See  Hinckley 
i;.  Cape  Cod  Railroad  Co.,  120  Mass. 
2.57;  Ferguson  v.  Wisconsin  Central 
Railroad  Co.,  19  Am.  &  Eng.  Railw. 
Cas.  285. 


§  13:3.]       1JAI;11J1  V    FOR   INJnRIE>>   IN    TIIIO    NATURE   OF  TORTS.        589 

all  one  way,  was  one  of  law  to  be  decided  l»y  the  court,  iunl  coiMd 
not  bo  loft  to  the  jury.^^  The  conij)any  are  l)ound  to  niaiiilain  a 
sign-board  and  other  precautions  ro(iuired  by  .statute  at  railway 
crossings,  at  the  place  whore  an  open  travelled  street  in  a  city 

*  Dascomb  v.  Buffalo  &  State  Line  Railroad  Co.,  27  Barb.  2J1 ;  Mackey  r. 
New  York  Central  Railroad  Co.,  27  Barb.  528.  It  would  set'in  to  be  tlie  duty 
of  one  about  to  pass  a  railway  to  exercise  watchfulne.s.s  to  know  that  a  train  i.s 
not  approaching.  lb.  Hanover  Railroad  Co.  v.  Coyle,  y.j  Peiuj.  St.  390; 
Wilcox  V.  Rome  &  Watertown  Railroad  Co.,  39  X.  Y.  358;  Pennsylvania  Canal 
Co.  V.  Bentley,  66  Penn.  St.  30,  seem  to  attempt  some  qualification  of  the  rule 
laid  down  in  the  text.  The  late  cases  all  seem  to  require  that  where  a  traveller 
is  crossing  a  railway  at  grade,  and  there  are  no  gates  or  flagmen,  it  is  his  duty  to 
stop  and  listen  and  keep  a  .sharj)  lookout  for  trains.  lb.  It  is  the  duty  both 
of  the  traveller  and  of  tlie  railway  to  keep  a  sharp  lookout,  each  for  the  lu-ril 
to  be  avoided  at  a  road-crossing.  Pittsburg,  Fort  Wayne,  &  Chicago  Railway 
Co.  V.  Dunn,  56  Penn.  St.  280;  Baltimore  &  Ohio  Railroad  Co.  v.  Breinig,  25 
Md.  378;  Webb  v.  Portland  &  Kennebec  Railroad  Co.,  57  Me.  117;  Havens  v. 
Erie  Railway  Co.,  53  Barb.  328;  Kennayde  v.  Pacifio  Railroad  Co.,  45  Mo.  255; 
Chicago  &  Alton  Railroad  Co.  v.  Gretzner,  46  111.  74.  And  the  traveller  is  not 
exonerated  from  the  duty  of  looking  uy)  and  down  the  track  of  a  railway  to  see 
whether  a  train  is  approaching,  before  going  upon  the  same,  by  n^ason  of  the 
company  omitting  to  ring  the  bell  or  blow  the  whistle,  and  if  his  omission  to  do 
so  contributed  to  his  injury  he  cannot  recover.  Havens  v.  Erie  Railway  Co., 
41  N.  Y.  296;  Grippen  v.  New  York  Central  Railroad  Co.,  40  K.  Y.  34;  Ilarty 
V.  Same,  42  N.  Y.  468;  Nicholson  v.  Fa'ig  Railway  Co.,  41  N.  Y.  525.  The 
plaintiff  cannot  recover  of  a  railway  company  for  damages  sustained  at  a  cross- 
ing at  grade,  if  neither  himself  nor  his  driver  exerci.scd  sullicient  watchful- 
ness to  see  the  sign-board,  which  might  have  been  seen  many  rods  before 
reaching  the  crossing,  and  neither  of  them  listened  to  know  whether  a  train 
was  approaching  before  entering  on  the  track.  Allyn  p.  Boston  &  Albany  Rail- 
road Co.,  105  Mass.  77.  The  court  here  decide,  as  matter  of  law,  tliat  tlie 
plaintiff  cannot  recover,  because  "  there  was  no  evidence  from  which  the  jury 
could  reasonably  and  properly  conclude  that  the  jilaintiff  wa.s  in  the  exercise 
of  due  care."  The  same  might  as  well  be  expressed  by  saying,  that  all  the 
evidence  tended  to  show  that  the  plaintiff  was  not  in  the  exercise  of  due  care. 
But  the  Massachu-setts  law  seems  entirely  settled,  that  the  plaintiff  must  show 
affirmatively  that  be  was  in  the  exercise  of  due  care  when  the  damage  accrued, 
or  he  cannot  recover.  lb.;  AVarren  i'.  Fitchburg  Railroad  Co.,  8  Allen,  227; 
Ilickey  v.  Boston  &  Lowell  Railroad  Co.,  i4  Allen,  429;  Murphy  v.  Deane. 
101  Mass.  455;  Southworlh  c.  Old  Colony  Railroad  Co.,  105  Mass.  342.  But 
it  seems  that  where  the  crossing  of  the  railway  and  highway  is  arranged  in 
such  manner,  that  travellers  cannot  see  or  hear  the  approaching  trains  by  llie 
use  of  care  and  watchfulness,  it  is  the  duty  of  the  company  to  use  extraordi- 
nary means  for  warning  travellers.  Rioh.ardson  i-.  New  York  Central  Rail- 
road Co.,  45  N.  Y.  816.  This  general  subject  is  somewhat  discussetl  by  Mr. 
Justice  FiKLD,  in  Railway  Co.  v.  Whitton,  13  Wal.  270. 

[•544] 


590  LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.        [PART   XI. 

intersects  the  railway,  although  the  street  has  not  been  so  laid 
out  and  established  by  the  municipal  authorities  as  to  make  the 
city  responsible  for  damages  occasioned  by  defects  therein,  such 
passage  being  a  "  travelled  route  "  within  the  meaning  of  the  stat- 
ute.*^  But  it  has  been  held,  that  the  company  is  not  liable  for  not 
constructing  an  under  pass  for  the  accommodation  of  the  public 
travel,  on  a  way  which  was  not  laid  out  agreeably  to  the  statute, 
and  had  not  been  in  use  by  the  public  twenty  years.'  It  is  such 
negligence  for  a  deaf  man  to  drive  an  unmanageable  horse  across 
a  railway  track  when  a  train  is  approaching,  that  he  cannot 
recover  for  any  damage  sustained.  He  should  wait  and  avoid 
exposure.^ 

^  Whittaker  r.  Boston  &  Maine  Railroad  Co.,  7  Gray,  98.  But  later  stat- 
utes adopt  a  different  phraseology. 

■^  Northumberland  v.  Atlantic  &  St.  Lawrence  Railroad  Co.,  35  N.  H.  574. 

^  Illinois  Central  Railroad  Co.  v.  Buckner,  28  111.  299.  This  question,  as 
to  the  care  required  both  of  the  company  and  of  the  person  crossing  a  railway,  is 
considered  in  Ernst  v.  Hudson  River  Railroad  Co.,  35  N.  Y.  9,  and  held  that 
the  omission  of  a  company  to  give  the  signals  required  by  the  statute  on  the 
approach  of  a  locomotive  within  eighty  rods  of  a  liighway  crossing,  is  a  breach 
of  duty  to  the  passengers,  whose  safety  it  imperils,  and  to  the  wayfarer,  whom 
it  exposes  to  mutilation  and  death ;  that  such  a  crossing  is  dangerous,  only 
when  the  company  makes  it  so  by  propelling  its  engines  across  it;  and  the 
statute,  therefore,  for  the  protection  of  human  life,  exacts  public  warning  of 
the  approach  of  such  danger;  that  the  injunction  is  plain  and  absolute,  and 
the  company  who  violates  it  does  so  at  its  peril;  that  tlie  omission  of  the 
customary  signals  is  an  assurance  by  the  company  to  the  traveller,  that  no 
engine  is  approaching  from  either  side  within  eighty  rods  of  the  crossing,  and 
he  may  rely  on  such  assurance,  without  incurring  tlie  imputation  of  breach  of 
duty  to  a  wrong-doer;  that  when  the  passer-by  knows  of  the  immediate  prox- 
imity of  an  advancing  train,  whether  the  warning  be  by  signals  or  otherwise, 
and,  having  a  safe  and  seasonable  opportunity  to  stop,  he  voluntarily  takes  the 
risk  of  crossing  in  front  of  it,  he  is  guilty  of  culpable  negligence,  and  forfeits 
all  claims  to  redress;  that  when  the  usual  warning  is  withheld,  the  wayfarer 
has  a  right  to  assume  that  the  crossing  is  safe,  and  that  the  company  is  not 
violating  the  law,  and  endangering  human  life,  by  running  an  engine  without 
signals;  that  the  citizen,  on  the  public  highway,  is  bound  only  to  the  exercise 
of  ordinary  care;  and  when  he  is  injured  by  the  negligence  of  a  railroad  com- 
pany, it  is  no  answer  to  his  claim  for  redress,  that,  notwithstanding  the  omis- 
sion of  the  signals,  he  might,  by  greater  vigilance,  have  discovered  the  approach 
of  the  train,  if  he  had  foreseen  a  violation  of  the  statute,  instead  of  relying 
on  its  observance;  that  the  traveller  is  not  bound  to  stop  on  the  highway,  or 
to  look  up  and  down  an  intersecting  railway  track  before  crossing,  when  there 
a;e  no  signals  of  an  approaching  engine;  that  ordinarily,  in  cases  of  this  de- 

[*544] 


§  1C:1]       LIAHILITY    roil    INJUIMKS    IN    TUK    NATL'UK    OK    TOUTS.        oOl 

*  4.  If  the  plaintiffs  negligence  did  not  contribute  to  his  in- 
jury, it  will  not  preclude  his  recovering  for  the  conseriucncos  of 
defendant's  *  wrong.^     If  the  wrong  on  the  part  of  the  defendant 

scription,  the  question  whether  the  party  injured  was  free  from  culpable  iic;^li- 
gence,  is  one  of  fact  to  be  determined  by  the  jury,  under  appropriate  instruc- 
tions, and  subject  to  the  revisory  power  of  the  courts;  that  where  the  proof  is 
undisputed  and  decisive  that  the  jiluintiff  was  guilty  of  misconduct,  and  that 
tliis  contributed  to  the  injury,  a  nonsuit  is  matter  of  right;  that  it  is  efjually 
matter  of  right  to  have  the  issue  of  negligence  submitted  to  the  jury,  when  it 
depends  on  conflicting  evidence,  or  on  inferences  to  be  deduced  from  a  variety 
of  circumstances,  in  regard  to  which  there  is  room  for  fair  difference  of 
opinion  between  intelligent  and  upright  men.  The  same  view  is  maintained 
and  further  illustrated  in  the  subsequent  case  of  Renwick  r.  New  York  Cen- 
tral Railroad  Co.,  36  N.  Y.  102.  These  cases  seem  to  develop  a  very  impor- 
tant and  most  unquestionable  rule  of  resixjusibility  on  the  part  of  railway 
companies,  in  regard  to  injin-ies  to  persons  at  highway  crossings;  i.  e.,  that 
the  companies,  when  omitting  the  customary  and  required  signals  before  arriv- 
ing at  such  crossings,  should  expect  proportionally  less  watchfulness  on  the 
part  of  travellers.  That  is  certainly  natural.  Tn  such  a  case  the  compaiiy 
ought  not  to  complain,  if  held  responsible  for  all  consequences  not  the  result 
of  absolute  foolhanliness.  In  State  of  Maryland  v.  Baltimore  &  Ohio  Railroad 
Co.,  5  Am.  Law  Reg.  x.  s.  VJ7,  s.  c.  21  Md.  81,  it  was  held,  that  the  plaintiff 
cannot  recover  for  an  injury  resulting  from  the  negligence  of  the  defendant,  if 
by  the  exercise  of  proper  prudence,  care,  and  skill,  he  might  have  escaped 
from  its  consequences,  or  where  his  own  want  of  such  prudence,  care,  and  skill 
directly  contributed  to  produce  the  damage  complained  of.  Railways  owe  a 
higher  degree  of  watchfulness  to  their  passengers  than  to  mere  strangers.  In 
the  former  case  the  utmost  care  and  skill  is  required,  in  order  to  avoid  inju- 
ries; but  in  the  latter  case,  only  such  as  skilful,  prudent,  and  discreet  j>erson9, 
having  the  management  of  such  business  in  such  a  neighborhood,  would  nat- 
urally be  expected  to  put  forth.  But  to  entitle  one  to  recover  of  a  railway 
company  for  an  injury  at  a  road-crossing  it  must  appear  that  he  was  rightfully 
on  the  highway.  Pittsburg,  Fort  Wayne,  &  Chicago  Railroad  Co.  v.  Evans,  5.'i 
Tenn.  St.  2-50. 

^  Kennard  r.  I'urton,  25  Me.  39.     In  a  recent  trial  in  the  Supreme  Court  of 
Penn.sylvania,  O'Brien  v.  Philadelphia,  Wilmington,   &    Baltimore  Railroad 
Co.,  10  Am.  Railw.  T.  13,  the  court  are  reported  to  have  charged  the  jury, 
as  matter  of    law,  that  "  a  person  about  to  cross  a  railway  track  [with  a 
team]  is  in  duty  bound  to  stop  and  look  in  both  tlirections,  and  listi'n  I  ■  ' 
crossing."     It  lias  recently  been  decided  by  the  full  bonoh  of  thf   .^^u] 
Court  of  Massachusetts,  .tupra,  note  4,  that  it  is  not  competent  for  the  ju.! 
lay  down  any  definite  rule,  as  to  the  duty  of  the  company,  in  regard  to  \:  ^    . 
precautions  in  crossing  highways;   that   the  circumstances  attending  such 
crossings  are  so  infinitely  diversified  that  it  must  be  left  to  the  jurj-  to  deter- 
mine what  is  proper  care  and  diligence  in  each  particular  case.     This  wo 
apprehend  is  the  true  rule  both  as  to  the  companv  ami  travellers  on  the  high- 

[•545,  •54''.] 


592  LIABILITY    FOR   CONTRACTORS,   AGENTS,   ETC.        [PART  VI. 

is  SO  ■wanton  and  gross  as  to  imply  a  willingness  to  inflict  the 
injury,  *  plaintiff  may  recover,  notwithstanding  his  own  ordinary 
neglect.^*'  And  this  is  always  to  be  attributed  to  defendant,  if  he 
might  have  avoided  injuring  plaintiff,  notwithstanding  his  own 
negligence.  So,  too,  if  tlie  neglect  on  the  part  of  the  plaintiff 
is  not  the  proximate  cause  of  the  injury,  it  will  not  preclude  a 
recovery  .1^ 

5.  If  a  railway  wholly  omit  to  give  the  proper  signal  at  a  road- 
crossing,  they  are  not  necessarily  liable  for  injury  to  one  crossing 
at  that  moment,  whose  team  took  fright  and  injury  ensued.  It 
should  be  shown  that  the  omission  had  some  tendency  to  produce 
the  loss. ^2  The  statute  requiring  railway  companies  to  make 
signals  in  all  cases  of  crossing  highways,  applies  to  crossings 
above  or  below  the  grade  of  the  highway,  as  well  as  to  those  at 
grade. '^ 

6.  A  conductor  was  held  not  liable  for  running  the  engine  over 
an  animal  trespassing  upon  the  track,  unless  he  acted  wilfully.^* 
*  So,  too,  where  the  train  passed  over  slaves  asleep  upon  the 
track,  the  company  were  held  not  liablc.^^ 

way,  and  that  -which  will  finally  prevail,  notwithstanding  occasional  attempts 
to  simplify  the  matter  by  definitions.  In  Brooks  v.  Buffalo  &  Niagara  Falls 
Railw.,  25  Barb.  600,  it  is  said  that  if  one  cross  a  railway  at  grade  with  a 
team,  whei-e  the  danger  may  easily  be  seen  by  looking  for  it,  and  especially 
where  he  drives  on  the  track  and  there  stops,  looking  in  an  opposite  direction 
from  an  approaching  train  till  it  strikes  hi  in,  he  is  guilty  of  such  negligence 
as  will  preclude  a  recovery. 

10  Wynn  v.  Allard,  5  Watts  &  S.  524;  Kerwhaker  v.  Cleveland,  Columbus, 
&  Cincinnati  Ilailroad  Co.,  3  Ohio  St.  172,  188. 

"  Trow  V.  Vermont  Central  Railroad  Co.,  24  Vt.  487;  Tsbell  v.  Xew  York 
&  New  Haven  Railroad  Co.,  27  Conn.  393;  s.  c.  2  Redf.  Am.  Railw.  Cas. 
474;  Chicago  &  Rock  Island  Railroad  Co.  v.  Still,  19  111.  499. 

12  Galena  &  Chicago  Railroad  Co.  v.  Loomis,  13  111.  548.  A  railway  is  not 
liable  for  an  injury  which  happens  in  crossing  a  railway,  in  consequence  of 
stationary  cars  of  the  company,  on  the  track,  obstructing  the  view  of  the 
plaintiff  in  his  approach  to  the  road.  Burton  i\  Railroad  Co.,  4  Har.  252. 
See  also  Morrison  v.  Steam  Navigation  Co.,  20  Eng.  L.  &  Eq.  267,  455;  8 
Exch.  733. 

"  People  I'.  New  York  Central  Railroad  Co.,  25  Barb.  199. 

1*  Vandegrift  v.  Rediker,  2  Zab.  185.  But  where  the  act  is  wrongful,  the 
action  may  be  against  both  the  engineer  and  the  fireman.  Suydam  v.  Moore, 
8  Barb.  358. 

15  Herring  v.  Wilmington  &  Raleigh  Railroad  Co.,  10  Ire.  402.  In  this 
case,  it  is  held  that  the  engineer  might  not  be  chargeable  with  the  same 
[*o47,  *5-48] 


I 


§  133.]       LIABILITY    FOR   INJURIES   IN   TIIK   NATURE   OF   TORTS.        593 

*  7.    Tlic  duty  rcfiuircd  of  railways  towards  those;  who  arc,  at 
the  time,  in  the  exercise  of  their  legal  rights,  is  the  possession  of 

degree  of  culpability  in  drivinc^  his  train  ovor  a  rational  creature,  or  one  who 
seemed  to  be  such,  and  in  tlie  exercise  of  his  faculties,  as  in  doing  the  same 
when  the  obstruction  was  a  brute  animal.  And  in  the  ca.se  of  running  over 
a  person  asleep,  or  a  deaf-mute,  or  an  insane  person,  some  indulgence  is, 
doubtless,  to  be  extended,  inasmuch  as  tlie  peculiar  state  of  the  per.>«on/iiiglit 
not  be  I'eadily  discoverable  by  those  in  charge  of  the  train.  They  would  have 
a  right  to  suppose  that  such  person  would  conduct  him.self  like  a  rational  being, 
and  step  off  the  track.  But  in  East  Tennessee  &  Georgia  liailroad  Co.  r.  St. 
John,  5  Sneed,  521,  it  was  held  that  the  company  was  res|x)nsible  for  killing 
a  slave  asleep  on  the  track,  who  might  have  been  seen  l)y  the  conductor  a 
quarter  of  a  mile,  but  who  was  mistaken  for  tlie  garments  of  the  laborers,  and 
no  signal  given  in  consequence. 

The  practice  of  allowing  persons  to  walk  on  a  railway  track  is  a  vicious  one, 
and  one  which  would  not  be  tolerated  in  any  state  or  country  where  the  rail- 
ways are  under  proper  surveillance.  Hut  as  it  now  is  in  many  parts  of  this 
country,  an  engineer  will  find  some  person  on  his  track  every  mile,  and  in 
some  places,  every  few  rods.  If  he  were  required  to  check  the  train  at  every 
such  occurrence,  it  would  become  an  intolerable  grievance.  If  men  will  insist 
on  any  thing  so  absurd  as  walking  on  a  railway  track  at  will,  they  must 
expect  that  those  who  are  bereft  of  sen.se,  but  preserve  the  form  of  humanity, 
when  they  chance  to  come  into  the  same  peril,  will  perish;  not  so  much  from 
their  own  infirmities,  as  from  the  absurd  practices  of  those  who  have  no  such 
infirmities.  It  may  be  urged  that  the  companies  might  enforce;  their  rigliLs, 
and  keep  people  off  their  tracks;  but  probably  companies  could  not  enforce 
such  a  regulation,  in  many  parts  of  the  country,  without  exciting  a  i)erplexing 
and  painful  prejudice,  to  such  an  extent  as  to  endanger  the  safety  of  their 
business.  The  only  effectual  remedy  will  be  found  in  making  the  act  punish- 
able by  fine  and  imprisonment,  as  is  done  in  Kngland  and  .some  of  the  state?, 
and  in  a  strict  enforcement  of  the  law  on  all  offenders.  Every  one  can  »eo 
that,  if  sane  persons  were  excluded  from  the  railway,  the  sight  of  a  person  on 
the  track  would  at  once  arrest  the  attention  of  conductors  of  train.s,  and  there 
would  be  comparatively  little  danger  of  the  destruction  of  any  one,  whereas 
now,  persons  bereft  of  sen.se  are  almost  sure  to  be  run  over.  One  who  is 
engaged  in  sawing  wood  on  the  track  of  a  railway  by  direction  of  the  super- 
intendent of  the  company,  and  is  injured  by  the  engine  of  another  company, 
lawfully  on  the  track,  cannot  recover  of  the  latter  comp.iny,  although  its 
engineer  was  guilty  of  carele.ssness,  being  himself  also  in  fault.  Railroad  r. 
Norton,  24  Penn.  St.  405.  In  Ranch  v.  Lloyd,  31  Penn.  St.  :r.S,  where  the 
state  owned  the  railway,  and  its  regulations  were  prescribed  by  the  canal 
commissioners,  and  the  state  supplied  the  motive  power,  and  allowed  jxrsons 
to  use  its  cars,  furnishing  a  conductor,  it  was  held  that  such  conductor  wiw 
the  responsible  person  in  charge  of  the  train  throughout  its  entire  route;  that 
the  agencies  provided  for  him,  whether  of  steam  or  horse  power,  were  his 
agencies,  and  the  ultimate  responsibility  in  regard  to  their  proper  conduct,  so 
VOL.  I.  — 38  [•54I>] 


594  LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.        [PART   VI. 

the  most  approved  machinery,  and  such  care,  diligence,  and  skill 
in  using  it  as  skilful,  jtrudent,  and  discreet  persons  would  be  ex- 
pected to  put  forth,  having  a  proper  regard  to  the  interests  of  the 
company,  the  demands  of  the  public,  and  the  interests  of  those 
having  property  along  the  road,  exposed  to  fire  and  to  injury  in 
other  modes.^^  Tliey  are,  at  least,  bound  to  exercise  as  much 
care  as  if  they  owned  the  property  along  the  line,  i.  e.,  what 
would  be  regarded  as  tlie  duty  of  a  prudent  owner  under  all  the 
circumstances.^"     It  has  been  held  that  the  company,  when  their 


far  as  strangers  were  concerned,  rested  on  him  and  on  the  owners  of  the  tiain, 
whose  servant  he  was.  And  where  it  was  the  practice  to  have  cars  pass  over 
a  portion  of  the  road  by  the  force  of  gravity,  and  after  arriving  at  a  given 
point,  to  be  drawn  by  horse  power  to  the  storehouses,  and  the  conductor  left 
them  standing  across  the  usual  crossing  of  the  highway  and  went  to  his  break- 
fast, and  during  his  absence  a  lad,  seven  years  old,  attempted  to  crawl  under 
the  cai's,  in  returning  from  an  errand,  and  was  seriously  injured  by  the 
starting  of  the  train  by  horses  furnished  on  contract  with  the  state,  and 
driven  by  the  owners'  drivers,  it  was  considered  that  the  conductor  and  his 
employers  were  responsible  for  the  injury.  It  was  also  held  that  where  cars 
were  so  left  standing  in  the  highway  unnecessarily,  it  was  not  a  question  to 
be  submitted  to  the  jury,  whether  they  constituted  an  unlawful  obstruction; 
that  as  matter  of  law,  such  obstruction,  if  avoidable,  was  unlawful.  In  such 
a  case,  no  greater  care  and  prudence  is  required  to  be  exercised  by  such  child 
than  it  is  reasonable  to  expect  of  one  of  such  tender  years.  See  Galena  & 
Chicago  Railroad  Co.  v.  Jacobs,  20  111.  478. 

10  Baltimore  &  Susquehanna  Railroad  Co.  v.  Woodruff,  4  Md.  242,  257. 
And  it  is  said  in  ^lersey  Docks  v.  Gibbs,  Law  Rep.  1  H.  L.  93,  that  if  one 
would  be  responsible  for  injury'resulting  from  a  cause  of  mischief,  of  whose 
existence  he  has  knowledge,  he  will  be  equally  so  if  he  is  negligently  ignorant 
of  its  existence. 

"  Quimby  v.  Vermont  Central  Railroad  Co.,  23  Yt.  387.  And  where  one 
was  injured  by  the  company's  train,  at  a  road-crossing,  by  collision  between 
tlie  company's  locomotive  and  the  carriage  in  which  the  plaintiff  was  riding, 
it  was  held,  that  the  carelessness  of  the  driver  of  the  carriage  could  not  be 
shown  by  common  reputation.  Nor  can  the  occupation  of  the  plaintiff,  and 
his  means  of  earning  support,  be  shown,  with  a  view  to  enhancing  the  damages 
for  such  an  injury,  unless  specially  averred  in  the  declaration.  Baldwin  v. 
Western  Railroad  Co.,  4  Gray,  333.  In  O'Brien  v.  Philadelphia,  Wilmington, 
&  Baltimore  Railroad  Co.,  10  Am.  Railw.  T.  13,  where  plaintiff  was  injured 
at  a  railway  crossing  a  highway,  by  collision  with  his  team,  Mr.  Justice 
Woodward,  of  the  Pennsylvania  Supreme  Court,  charged  tlie  jury,  that  the 
plaintiff  was  entitled  to  compensatory  damages  only,  there  being  no  pretence 
of  any  intentional  wrong,  or  flagrant  rashness,  on  the  part  of  the  agents  of 
the  company. 
[*549] 


§  133.]       LIAniLlTY    FOR    INJURIKS    IN    TllK   NATUllK   OF'   TOHT^.        .'/.•.'> 

*  road  passes  the  thoroughfares  of  a  city,  are  hound  to  use  extra- 
ordhiary  care  not  to  injure  pei'sons  in  the  streets,'** 

8.  The  general  rule,  iu  regard  to  the  time  of  the  accruing  of 
tlic  action  is,  that  when  the  act  or  omission  causes  direct  and 
immediate  injury,  the  action  accrues  fi'oui  the  time  of  doing  the 
act,  but  where  the  act  is  injurious  only  from  its  consequences,  as 
by  undermining  a  house  or  wall,  or  causing  water  to  How  back  at 
certain  seasons  of  high  tide  or  high  water,  the  cause  of  action 
accrues  only  from  the  consequential  injury.''-^  In  the  case  of 
Backhouse  v.  Bonomi,^^  it  was  held  that  no  cause  of  action  accrued 
from  defendant's  excavation  in  his  own  land,  until  it  caused  dam- 
age to  the  plaintiff's;  and  the  case  of  Nicklin  v.  Williams,^'  as 
far  as  it  conflicts  with  this,  was  held  not  maintainal>le.  The 
cases  were  examined  very  thoroughly  in  the  e(turse  of  the  discus- 
sion of  this  case  before  the  Queen's  Bench,  which  held  that  the 
cause  of  action  accrued  from  the  act  of  defendant,  and  in  tJic 
Exchequer  Chamber,  where  that  judgment  was  reversed,  and 
final!}'  in  the  House  of  Lords,  where  the  judgment  of  the  K.\- 
chequer  Chamber  was  afiirmed.  The  law  on  this  ))oint  may  now 
be  considered  settled  in  the  English  courts.  Where  the  issue  is 
in  regard  to  the  prudent  use  of  a  highway  l)y  the  company,  it  is 

*  not  competent  to  give  evidence  of  the  mode  of  using  the  same 
by  the  company  at  other  times.-^ 

9.  As  a  general  rule,  in  the  English  practice,  and  in  most  of 
the  states  of  the  Union,  in  actions  for  torts,  where  the  defend- 
ant's conduct  has  been  wanton,  or  the  result  of  malice,  the  jury 
are  allowed  to  give  damages  of  an  excmjilary  character,  antl  (he 


18  Wilson  V.  Cunningham,  3  Cal.  211 ;  infra,  pi.  15,  notes  31,  32,  33. 

1^  Roberts  v.  Read,  IG  Ea.st,  215.  Where  tlie  act  complained  of  was  mali- 
ciously opposing  plaintiff's  discharge  as  an  insolvent,  and  the  act  was  more 
than  six  years  before  action  brought,  but  the  consequent  imprisonment  con- 
tinued within  the  six  years,  it  was  lield  that  the  cause  of  action  was  barred. 
Violet  V.  Simpson,  30  Law  T.  lit;  s.  c.  S  Ellis  &  H.  314.  Tho  a.lmissions  of 
the  corporators,  or  of  the  president,  are  not  sufficient  to  remove  the  bar  of  the 
statute  of  limitations,  in  favor  of  a  private  corjxjration.  Lyman  r.  Norwich 
University,  28  Vt.  5G0. 

20  9  IL'l.  Cas.  503;  s.  c.  Ellis,  B.  &  E.  GIG;  7  Jiir.  n.  8.  509;  8.  c  5  Jur. 
N.  s.  1345;  4  Jur.  x.  s.  11 82. 

21  10  Exch.  259. 

"  Gahagan  v.  Boston  &  Lowell  Railroad  Co.,  1  Allen.  1S7. 

[•550,  VV,!] 


596  LIABILITY   FOR   CONTRACTORS,    AGENTS,   ETC.        [PART   VI. 

term  "vindictive"  even  is  sometimes  used.^^     But  this  is  ques- 
tioned by  some  writers,  and  in  many  cases.^* 

10.  Wiierc  a  level  crossing  over  a  railway  is  protected  by  a 
gate,  established  by  the  company  and  tended  by  one  of  its  ser- 
vants, in  conformity  with  the  law,  those  having  occasion  to  cross 
the  track,  and  who  arc  injured  by  an  attempt  to  cross  when  the 
gate-keeper  assures  them  the  line  is  clear,  may  recover  dam- 
ages of  the  company.  It  is  the  implied  duty  of  the  gate-keeper 
to  know  when  trains  are  due,  and  to  give  correct  information  in 
that  respect,  and  not  open  a  gate  for  passage  across  the  track 
miless  he  knows  no  duly  advertised  train  is  due.  And  if  a  train 
not  advertised  to  the  gate-keeper,  or  at  a  time  not  advertised 
to  him,  is  allowed  to  pass,  whereby  injury  accrues  to  those  hav- 
ing just  occasion  to  pass  the  track,  it  is  the  fault  of  the  com- 
pany .^^ 

11.  And  where  a  railway  company  make  a  private  crossing  over 
their  track,  at  grade,  in  a  city,  and  allow  the  public  to  use  it  as 
a  highway,  and  station  a  flagman  there  to  warn  persons  of  the 
approach  of  trains,  they  will  be  held  responsible  in  damages  to 
any  one,  who,  in  the  exercise  of  proper  care,  is  induced  to  cross 
by  signal  from  the  company's  flagman  that  it  is  safe,  he  being 
damaged  by  collision  with  approaching  trains,  through  this  neg- 
ligence of  the  flagman.^^  («;) 

23  Sedgw.  Dam.  38,  98,  454;  infra,  §§  17G,  197.  In  the  case  of  Shaw  v. 
Boston  &  Worcester  Raih'oad  Co.,  supra,  note  4,  where  the  plaintiff's  husband 
was  killed,  by  the  same  collision,  and  she  was  shown  to  have  had  a  family 
of  young  children,  and  to  be  without  sufficient  property  for  their  support, 
it  was  held  to  be  error  in  the  court  not  to  charge  the  jury,  when  specially 
requested  so  to  do,  that  those  facts  could  not  be  considei'ed  by  them  in  esti- 
mating damages. 

2*  Sedgw.  Dam.  609;  Varillat  v.  New  Orleans  &  Carrollton  Railroad  Co.,  10 
La.  An.  88;  Taylor  v.  Railroad  Co.,  48  N.  H.  304. 

25  Lunt  V.  London  &  Northwestern  Railroad  Co.,  Law  Rep.  1  Q.  B.  277; 
s.  c.  12  Jur.  N.  s.  409. 

25  Sweeny  v.  Old  Colony  &  Newport  Railroad  Co.,  10  Allen,  308.  The  com- 
pany is  not  bound  to  keep  a  flagman  at  road-crossings  to  warn  travellers,  unless 
in  exceptionally  dangerous  places.  But  by  keeping  a  flagman  at  a  particular 
crossing  the  company  may  have  excited  such  expectation  of  being  warned  of 
danger,  as  to  make  it  negligence  to  withdraw  such  flagman.     Ernst  v.  Hudson 


(e)  So  where  there  is  no  flagman.     Murphy  v.  Boston  &  Albany  Railroad 
Co.,  133  Mass.  121. 

[*551] 


§  183.]       LIABILITY    lOII    l\JLRIi:.S    IN    Till-:    NATURE    OF   TORTS.        597 

12.  In  the  English  courts,  the  cases  in  regard  to  respon.siljility 
oil  the  part  of  the  companies  fur  injuries  at  the  crossiiiirs  of  hiu'h- 
ways  *  and  private  ways,  ilo  nut  avvm  always  entirely  (-(insistent 
with  each  othei',  the  rule  being  iK'\cr  to  disturb  a  verdict  where 
tlie  (hunages  are  at  all  reasonable,  jirovidtd  there  was  any  proof, 
although  the  slightest,  of  the  oniissiun  of  duty  on  the  part  of  the 
company's  servants,  and  provided  also  that  the  plaintiff  was  not 
himself  in  fault.  In  two  recent  cases,  there  were  no  watchmen 
or  gate-tenders  present,  at  crossings  of  jjublic  ways;  and  in  buth 
instances  foot-passengers  were  run  down  by  passing  trains  in 
crossing.  In  one  case,-^  there  seemed  no  sixjcific  omis.siou  by 
the  comj)any,  and  the  court  held  them  not  liable ;  in  the  other 
case,-^  the  gates  were  partly  open,  contrary  to  the  statutes,  and 
the  court  refused  to  set  aside  a  verdict  against  the  comi)any. 

13.  In  a  late  casc,^  where  the  duty  of  railways  at  level  roa«l- 
crossings  is  consideral>ly  discussed,  it  is  declared  that  the  railway 
has  the  right  of  way  before  all  others,  ami  that  negligence  is  not 
to  be  presumed  from  rate  of  si)ccd  alone.  It  is  also  here  declared, 
that  the  party  injured  is  not  to  be  presumed  innocent  of  all  fault, 
but  that  fact  must  be  proved,  either  by  direct  evidence  or  the  cir- 
cumstances attending  the  accident. 

14.  Where  one  was  thrown  from  his  carriage  at  the  intersection 
of  the  railway  and  highway,  his  horse  being  rendered  unmanage- 
able by  the  sounding  of  the  whistle  as  a  signal  for  starting  the 
train,  it  was  held  that  railways  had  the  right  to  establish  and  use 
necessary  and  proper  signals  for  the  conduct  of  their  business; 
that  this  should   be  done  with  reference  to  the  convenience  of 

River  llailroad  Co.,  39  X.  Y.  <'>!.  See  also  Beisiegel  r.  New  York  Central 
Railroad  Co.,  40  N.  Y.  9;  s.  c.  1  Redf.  Am.  Railw.  Cus.  618;  Crippen  r.  Same, 
40  N.  Y.  34.  The  fact  that  a  crossing  has  remained  for  many  years  wiiliout 
any  protection,  and  no  complaint  has  been  made  by  the  municipal  authorities 
or  any  demand  made  for  a  gate  or  flagman,  or  any  other  protection  to  travel- 
lers, may  be  considered  in  estimating  tiie  duty  of  the  company.  The  duty  of 
the  company  is  to  be  decided  by  the  jury,  under  proper  in.st ruction.'*,  from  a 
consideration  of  all  the  facts.  Rut  if  there  is  no  evidence  of  negligence,  or  it 
is  insufficient,  the  verdict  finding  it  will  not  be  sustained.  Commonwealth 
V    Boston  &  Worcester  Railroad  Co.,  101  Mass.  201. 

27  Stubley  r.  London  &  Northwestern  Railroad  Co.,  Law  Rep.  1  Exoh.  l-l. 

28  Stapley  r.  London,  Rrighton,  &  South  Coast  Railroad  Co  .  Law  Rep.  1  Exch. 
21;  s.  p.  Wanless  v.  Northeastern  Railroad  Co..  Law  Rep.  G  Q.  B.  -ISl. 

29  Warner  v.  New  York  Central  Railroad  Co.,  11  X.  V.  4G0. 

[•352] 


598  LIABILITY    FOR    CONTRACTORS,   AGENTS,   ETC.        [PART  VI, 

others  as  well  as  themselves ;  and  whether  the  company  fail  in  so 
doing  must  be  left  to  the  jury  in  each  case,  except  so  far  as  public 
use  and  convenience  have  settled  the  matter,  which  may  be  shown 
by  evidence.^*^ 

15.  Where  a  stranger  is  injured  by  a  passenger  train  the  pre- 
sumjjtion  is  in  favor  of  the  carriers,  and  the  party  injured  must 
prove  negligence.-^^  (/)  The  carrier  by  railway  is  bound  to  ex- 
ercise such  care  and  watchfulness  in  moving  trains  about  a  city, 
as  a  due  regard  to  the  dispatch  of  his  own  business  and  the 
safety  of  those  in  the  streets  will  fairly  justify  or  require.^^  But 
where  one  exposes  himself  recklessly,  as  by  being  in  a  car  house 
without  the  knowledge  of  the  company,  or  attempts  to  cross  the 
railway  track,  when  the  train  is  within  forty  feet,  he  cannot 
recover.^^ 

16.  In  one  case  ^^  the  court  very  properly  held  the  company  re- 
sponsible where  the  engineer,  near  a  road  crossing,  negligently  or 
maliciously  let  off  steam,  Avhereby  a  person's  horses  about  passing 
the  crossing  were  frightened,  and  he  thereby  received  injuries. 

so  Hill  V.  Portland  &  Rochester  Railroad  Co.,  55  Me.  438.  The  rule  of  law 
and  the  mode  of  trial  applicable  to  cases  of  this  class  are  here  considerably  dis- 
cussed. Passenger  carriers  by  steamboat  do  not  owe  the  same  degree  of  care 
to  other  vessels  to  avoid  collision,  which  they  do  to  their  passengers.  Phila- 
delpliia,  Wilmington,  &  Baltimore  Railroad  Co.  v.  Kerr,  25  Md.  521.  See  1 
Redf.  Lead.  Railw.  Cas.  648,  6G9,  et  seq. 

SI  Baltimore  Sc  Ohio  Railroad  Co.  v.  Bahrs,  28  INId.  G47. 

32  Bannon  v.  Baltimore  &  Ohio  Railroad  Co.,  24  Md.  108.  The  fact  that 
the  person  injured  was  an  infant  will  not  affect  the  duty  of  the  company.     lb. 

*s  Lehey  v.  Hudson  River  Railroad  Co.,  4  Rob.  N.  Y.  204;  Schwartz  ik 
Same,  4  Rob.  N.  Y.  347.  See  also  Edgerton  v.  New  York  &  Xew  Haven  Rail- 
road Co.,  39  N.  Y.  227. 

24  Toledo,  Wabash,  &  Western  Railroad  Co.  v.  Harmon,  47  111.  208.  This 
case  illustrates  a  very  common  nuisance,  which  has  attracted  considerable  at- 
tention in  some  parts  of  the  country,  where  the  sick,  and  at  night  even  the 
well  suffer  very  serious  annoyance,  from  the  continuous  noise  of  steam  whis- 
tles, made  more  for  the  amusement  of  the  engineers  than  from  any  absolute 
necessity. 

(/)  But  in  some  cases  there  is  no  v.  Missouri  Pacific  Railway  Co.,  7  Mo. 
presumption  on  either  side.     Richey     Ap.  150. 

[*552] 


§  134.J       MISCONDUCT   OF   OPERATIVES   SUOWN    IJY    EXPERTS. 


599 


SECTION   VI. 


Misconduct  of  Railway   Operatives  shown  hy  Experts. 


Train  management  so  far  matter  of  art 
and  science,  that  testimony  of  ex- 
perts may  be  received. 

Burden  of  proof  in  cases  of  tort. 
Company,  wlien  bound  to  produce 
expert  testimony  in  exculpation. 


3.  Plaintiff  not  bound  in  opening  to  pro- 

duce testimony  from  experts. 

4.  Omission  to  produce  such  testimony, 

however,  will  often  require  explana- 
tion. 
n.  6.   General  rules  in  regard  to  the  tes- 
timony of  experts 


§  134.  1.  Tlic  conduct  of  a  railway  train  is  not  strictly  matter 
of  science  perlia])S.  Its  laws  are  not  so  far  de(ined,  and  so  e.\- 
empt  from  variation,  as  to  be  caiiable  of  ])erfect  knowledge,  like 
those  of  botany  and  geology,  and  other  similar  sciences,  or  even 
those  of  medicine  and  surgery  perhai)S,  whose  laws  arc  subject  to 
more  variation.^  But  they  are  nevertheless  so  far  matters  of 
skill  and  experience,  and  are  so  little  understood  by  the  com- 
munity generally,  that  the  testimony  of  inexperienced  persons 
in  regard  to  the  conduct  of  a  train,  on  a  particular  occasion,  <>r 
under  particular  circumstances,  would  be  worthy  of  very  little 
reliance.  They  might  doubtless  testify  in  regard  to  what  they 
saw,  and  what  appeared  to  be  the  conduct  of  the  operatives,  but 
those  skilled  in  such  matters  might,  as  experts  in  other  cases  are 
*  allowed  to  do,  express  an  ojiinion  in  regaid  to  tlie  conduct  of 
the  train,  as  shown  by  the  other  witnesses,  and  how  far  it  was 
according  to  the  rules  of  careful  and  prudent  management,  ami 
what  more  might,  or  should  have  been  done,  consistently  with 
the  safety  of  the  train,  in  the  particular  emergency .^  (a)  I>ut 
where  the  plaintiff,  who  claimed  damages  on  account  of  the  mis- 
conduct of  a  flagman  at  a  railway  crossing,  had  attempted  to 
prove  that  he  was  a  careless  and  intemperate  j^erson,  it  was  held 
that  the  company  might  show  that  he  was  careful,  attentive,  and 

1  Quimby  f-  Vermont  Central  Railroail  Co.,  2:}  Vt.  301,  395. 

2  Illinois  Central  Railroad  Co.  r.  Reedy,  17  111.  .')S0,  583. 

(a)  Thus,  one  who  has  acted  as  the  means  for  stopping  trains.  MoMle 
conductor  for  more  than  seven  years  &  Montcroniery  Railroad  Co.  r.  Blakely, 
may  be  examined  as  an  expert  as  to     59  Ala.  471. 

[•o53] 


600  LIABILITY   FOR   CONTRACTORS,   AGENTS,   ETC.         [PART  VI. 

temperate,  and  tliat  these  facts  miglit  be  proved  by  those  who 
had  seen  his  conduct,  and  need  not  be  shown  by  experts.^ 

2.  But  a  railway  company,  when  sued  for  misconduct,  are  not 
bound,  in  tlic  first  instance,  ordinarily,  to  show,  by  the  testimony 
of  experts,  that  they  were  guilty  of  no  mismanagement.  But  in 
the  case  of  an  injury  to  passengers,  the  rule  is  otherwise.* 

3.  And  it  has  been  said,  that  one  who  brings  an  action  against 
a  railway  founded  upon  negligence  and  misconduct,  is  not  bound 
in  opening  his  case,  to  show,  that  by  the  laws  and  practice  of 
railway  companies  there  was  mismanagement  in  the  particular 
case.  If  he  sees  fit  to  trust  that  question  to  the  good  sense  of  the 
jury  he  may.^ 

4.  But  it  is  obvious,  that  in  cases  of  this  kind,  although  the 
jury  are  ultimately  to  determine,  upon  such  light  as  they  can 
obtain,  and  will  be  governed  a  good  deal  by  general  principles  of 
reason  based  upon  experience,  and  that  the  testimony  of  wit- 
nesses unskilled  in  the  particular  craft,  will  doubtless  have  a 
considerable  influence  in  establishing  certain  remote  principles, 
by  which  all  men  must  be  governed,  in  extreme  cases,  neverthe- 
less, in  that  numerous  class  of  cases  in  courts  of  justice  which 
have  to  be  determined  upon  a  nice  estimate  and  balance  of  con- 
flicting testimony,  the  opinion  of  experienced  men  in  the  par- 
ticular *  business  must  be  of  very  controlling  influence.  And  it 
is  very  well  understood,  that  generally,  the  fact  that  such  evi- 
dence is  not  produced,  unless  the  omission  is  explained,  will  tend 
to  raise  a  presumption  against  the  party .^ 

2  Gahagan  v.  Boston  &  Lowell  Railroad  Co.,  1  Allen,  187. 

*  Infra,  §  192;  Galena  &  Chicago  Railroad  Co.  v.  Yarwood,  17  111.  509. 

6  Quimby  v.  Vermont  Central  Railroad  Co.,  23  Vt.  391,  395.  Evidence  of 
the  good  or  bad  habits  of  servants  has  sometimes  been  received  in  cases  of 
alleged  negligence;  but  in  general  no  such  evidence  is  admissible,  since  the 
master  is  responsible  for  what  his  servant  does,  and  not  for  what  he  might 
have  been  expected  to  do.  Hays  v.  Mellor,  11  Law  Reg.  n.  s.  370;  Tenny  v. 
Tuttle,  1  Allen,  185. 

^  ]Murray  v.  South  Carolina  Railroad  Co.,  10  Rich.  227.  As  there  are  few 
cases  bearing  on  this  question,  in  regard  to  railways,  reference  may  be  had  to 
analogous  subjects  where  the  question  has  arisen.  Nautical  men  may  testify 
to  their  opinion,  whether,  on  the  facts  proved  by  the  plaintiff,  the  collision  of 
two  ships  could  have  been  avoided,  by  proper  care  on  the  part  of  defendants' 
servants.  Fenwick  v.  Bell,  1  C.  &  K.  312.  So,  too,  in  regard  to  the  projier 
stowage  of  a  cargo.     Price  v.  Powell,  3  Comst.  322.     So  a  master,  engineer, 

[*554] 


§  134.]       MISCONDUCT   OF   OPEUATIVK.S   SIKjWN    IJY    KXI'KKTS.  OOl 

and  builder  of  steamboats,  may  testify  to  his  oiiinion,  oti  tli«  facts  proved,  an 
to  the  manner  of  a  collision.  "J'lie  Clipper  v.  Logan,  18  (Jliio,  ;J7o;  SiiU  r. 
Brown,  9  C.  &  P.  GUI.  It  has  been  held,  that  even  experts  may  not  be  called 
to  express  an  opinion,  whether  there  was  misconduct  in  the  particular  ca.s«!  on 
trial,  as  that  is  the  province  of  the  jury,  but  that  they  may  exj)res.s  their 
opinion  on  a  precisely  similar  case,  hypothetically  stated,  whiih  seems  to 
be  a  very  nice  distinction,  and  which  is  combated  in  a  vory  sensible  note  to 
Fenwick  v.  I?ell,  1  Car.  &  K.  312.  The  opinion  of  Lord  Ei.i.K.NUouof(;ii, 
in  Beckwith  v.  Sydebotham,  1  Camp.  110,  117,  that  where  there  is  a  mattt-r 
of  skill  or  science  to  be  decided,  the  jury  may  be  assisted  by  tlie  opinion  of 
those  peculiarly  acquainted  with  it  from  their  professions  and  pursuits,  seems 
more  just  and  wise.  We  have  always  regarded  the  testimony  of  exi)crLs  as  a 
sort  of  education  of  the  jury  on  subjects  in  regard  to  which  they  are  not  pre- 
sumed to  be  properly  instructed.  The  nearer  the  testimony  comes  to  the 
very  case  in  hand,  the  more  useful.  And  the  Jiucsse  of  keeping  the  vt-ry 
case  out  of  sight,  but  describing  it  by  supposition,  in  iisking  the  opinion  of 
the  experts,  serves  very  little  purpose.  But  the  more  common  practice  is 
according  to  the  rule  in  Sills  r.  Brown.  In  an  action  against  a  railway  com- 
pany for  carrying  its  road  through  plaintilT's  pasture,  throwing  down  his 
fences,  and  scattering,  frightening,  and  injuring  his  cattle,  it  was  lield  that 
an  experienced  grazier  is  competent  to  testify  as  an  expert  on  a  supjxjsed  state 
of  facts  in  regard  to  the  state  of  cattle  and  to  causes  affecting  their  weight  and 
health;  but  that  he  could  not  express  an  opinion  on  the  facts  proved  in  the 
particular  case,  on  the  point  to  be  determined  by  the  jury.  Baltimore  &  Ohio 
llailroad  Co.  v.  Thomp.son,  10  Md.  70.  In  Webb  v.  Manchester  &  Leeds 
Ilailroad  Co.,  4  ^lyl.  &  C.  110;  s.  c.  1  Ilailw.  Cas.  570,  a  jxiint  involving 
questions  of  practical  science  being  in  dispute,  and  the  testimony  contlii'ting, 
it  was  referred  to  an  engineer  for  his  opinion,  and  his  conclusion,  •  in  regard 
to  the  facts,  was  adopted  and  made  the  basis  of  the  order  of  court.  In  the  case 
of  Seaver  r.  Boston  &  Maine  Ilailroad  Co.,  11  Gray,  100,  after  .several  experts 
called  by  the  plaintiff  had  testified,  on  a  statement  of  facts  and  circumstances 
of  the  accident,  what  in  their  opinion  threw  the  cars  from  the  tracks,  the  de- 
fendants were  permitted  to  ask  a  machinist  who  had  been  connected  for  many 
years  with  railways,  and  with  the  running  of  cars  and  engines  on  tliem,  and 
who  was  in  the  cars  at  the  time  of  the  accident,  and  saw  the  occurrence  and 
all  the  attending  circumstances,  what  in  his  opinion  threw  the  cars  from  the 
track,  and  it  was  held  no  ground  of  exception.  ^Lany  of  the  principles  appli- 
cable to  the  admissibility  of  the  testimony  of  experts  ujxmi  the  question  of 
mental  soundness  are  applicable  here,  and  so  are  the  rules  of  practice.  See 
lledf.  Wills,  135  el  seq. 

[•555] 


602 


RAILWAY   DIRECTORS. 


[part  VI. 


*CHAPTER    XXL 

railway  directors. 


SECTION  I. 


Extent  of  Authority/  of  Directors. 


\.  In  general,  directors  may  do  any  act 
in  the  range  of  the  company's  busi- 
ness which  company  might  do. 

2.  Applications  to  legislature  for  enlarged 

corporate  powers,  or  right  to  sell 
■works,  require  consent  of  share- 
holders. 

3.  Constitutional  requirements  as  to  mode 

of  exercising  corporate  powers  must 
be  strictly  followed. 

4.  Directors  cannot  essentially  alter  nat- 

ure of  business,  nor  can  majority  of 
shareholders. 
6.   Equity  has  some  control,  but  inherent 
difficulty  in  defining  the  proper  lim- 
its of  railway  enterprise. 

6.  Acts  ultra  vires  can  be  confirmed  only 

by  actual  assent  of  general  body  of 
shareholders. 

7.  Directors  of  any  trading  corporation 

may  give  bills  of  sale  in  security  for 
debts. 

8.  Directors  cannot  bind  company  except 

in  conformity  with  charter. 


9.   Company   cannot  retain  money  ob- 
tained by  fraud  of  directors. 

10.  Fraud   not  made  out  without  proof 

that  party  was  misled  without  his 
own  fault. 

11.  Company,  by  adopting  act  of  direc- 

tors, makes  itself  re.'^ponsible. 

12.  Prospectus  and  report  should  contain 

the  wliole  truth. 

13.  Directors  cannot  issue  shares  to  pro- 

cure votes  and  control  corporation. 

14.  Fraud  in  the  reports  of  the  company, 

what  constitutes. 

15.  Directors  responsible   for  fraudulent 

acts  and  representations. 

16.  Directors    may  ratify  any  act  which 

they  have  power  to  do. 

17.  Directors    represent  the  company  in 

dealing  with  employe's. 

18.  Equity  will  not  require  a  useless  or  in- 

jurious act,  even  to  remedy  a  pro- 
ceeding ultra  vires. 

19.  Acceptance    by  corporation    of    the 

avails  of  a  contract  will  amount  to 
ratification. 


§  135.  1.  We  have  elsewhere  stated,  in  general  terms,  the 
power  of  the  directors  of  the  company  to  bind  them.^  The  board 
of  directors  ordinarily  may  do  any  act,  in  the  general  range  of 
its  business,  which  the  company  can  do,  unless  restrained  by  the 
charter  and   by-laws.^  (a)     Notice  to  one  of   a  board   of  direc- 

1  Supra,  §  113;  infra,  §  140. 

2  Whitwell  V.  Warner,  20  Vt.  425;  s.  c.  2  Redf.  Am.  Railw.  Ca,s.  340. 
But  the  general  agent  of  such  a  company,  wlio  performs  the  daily  routine  of 

(a)  Legally  they  are  the  agents  of  the  company  itself,  and  the  authority 
the  company,  but  practically  they  are     of  ordinary   agents   is   deiived  from 

[*556] 


§  135.]  EXTENT    OF    AUTIlUKITy,  C03 

tors,  ill  *  the  same  transaction,  or  express  notice,  is,  in  general, 
notice  to  the  company.  But  the  fact  that  one  of  the  (irm  is  a 
director  in  a  banking  company,  but  takes  no  active  part  in  the 
business  of  the  bank,  is  no  notice  to  such  bank  of  the  dissolution 
of  such  ))artnership,  or  the  retirin<jj  of  one  of  its  partners.^ 

2.  But  it  is  said  the  directors  of  a  corporation  liave-  no  author- 
ity, without  a  vote  of  the  shareholders,  to  apply  t(j  the  lejrislature 
for  an  enlargement  of  the  corporate  powers.*  And  it  was  h»-ld, 
that  the  managing  directors  of  a  joint-stock  comj)any,  who  liad 
power  to  lease  the  works  of  a  company,  could  nut,  in  the  lease, 

the  business  of  tlie  company,  cannot  bind  the  company  beyond  the  scope  of 
his  ordinary  duties.  Ilence  the  law  agent  of  a  joint-stock  insurance  coniiiany 
cannot  bind  the  company  by  liis  false  representations  as  to  the  state  of  its 
finances.  Burnes  v.  Pencil,  2  II.  L.  Cas.  497.  But  where  the  directors  of 
the  company  make  such  false  representations  as  to  the  state  of  the  finances  of 
the  company  to  enhance  the  price  of  stocks,  they  are  liable  to  an  action  at  the 
suit  of  the  penson  deceived,  or  to  criminal  prosecution;  and  transfers  of  stock, 
made  on  the  faith  of  such  representations  will  be  set  aside  in  equity.  lb. 
Lord  Cami'IJKLl  said,  it  was  not  necessary  that  the  representation  be  nnule 
personally  to  the  plaintiff.  See,  also,  Soper  i'.  Buffalo  &  Rochester  Railroad 
Co.,  19  Barb.  310.  But  where  the  charter  of  a  railway  company,  or  the  gen- 
eral laws  of  the  state,  require  the  ratification  of  a  particular  contract,  by  a 
naeeting  of  the  shareholders,  held  in  a  prescribed  manner,  such  contract,  as- 
sumed by  the  directors  only,  does  not  bind  the  company,  and  a  court  of  e<iuity 
will  not  hesitate  to  enjoin  its  performance  by  the  company  at  the  suit  of 
any  dissenting  shareholder.  Zabriskie  v.  Cleveland,  Columbus,  &  Cincinnati 
Railroad  Co.,  lU  Am.  Railw.  T.  No.  15;  s.  c.  23  How.  381.  Where  a  tariff 
of  fares  of  freight  and  passengers  on  a  railway  is  established  and  po.sted  up  by 
the  president  of  the  company,  and  is  acted  on  in  transacting  the  busine&s  of 
the  company  without  objection,  the  consent  of  the  coriX)ration  will  l>e  pre- 
sumed,    lli'lliard  v.  Goold,  31  N.  II.  230. 

8  Bowles  I'.  Page,  3  C.  B.  1''.;  Dunham  r.  Troy  I'liion  Kailrna«l  Co,  -JO 
N.  Y.  543.  But  the  secretary  of  a  railway  company  cannot  bind  the  company 
by  admissions.  Bell  v.  London  &  Northwestern  Railroad  Co.,  15  Beav.  518. 
Nor  can  the  directors  bind  the  company  by  their  declarations,  uide.<w  con- 
nected with  their  acts,  as  part  of  the  res  fjeslcB.  Soper  r.  Buffalo  &  Rochester 
Railroad  Co.,  19  Barb.  310.  Notice  of  process  to  two  directors  of  a  canal 
com[)any  is  good  notice  to  the  company,  and  will  bind  it,  althoucli  never 
communicated  to  the  board.  Boyd  v.  Chesapeake  &  Ohio  Canal  Co.,  17 
Md.  195. 

*  Marlborough  Manufacturing  Co.  r.  Smith,  2  Conn.  579. 

thera.  Louisville,  Evansville,  &  St.  as  manager  may  bo  aj^sumcil  to  act  on 
Louis  Railroad  Co.  ;•.  iNIcVey,  98  Ind.  authority.  AValker  r.  Detroit  Transit 
382.     And  one  of  the  board  held  out     Railway  Co.,  47  Mich.  33S. 

[•557] 


604  RAILWAY   DIRECTORS.  [PART   VI. 

give  an  option  to  tlie  lessee,  to  purchase,  or  not,  at  a  price  fixed, 
the  entire  works  of  tlie  company,  at  any  time  within  twenty  years, 
and  that  such  a  contract  must  he  ratified  by  every  member  of  the 
company  to  become  binding  upon  them.^  (I)) 

3.  And  where  the  deed  of  a  joint-stock  company  enables  the 
majority  to  bind  the  company,  by  a  resolution  passed  in  a  certain 
manner,  these  formalities  must  be  strictly  complied  with,  or  the 
minority  will  not  be  bound  by  the  act.*^ 

*  4.  So,  too,  where  the  directors,  or  even  a  majority  of  the 
sharclaolders,  assume  to  enter  into  a  contract,  beyond  the  legiti- 
mate scope  of  the  objects  and  purpose  of  the  incorporation,  the 
contract  is  not  binding  upon  the  company,  and  any  shareholder 
may  restrain  such  parties  by  injunction  out  of  Chancery,  from 
applying  the  funds  of  the  com])any  to  such  purpose,  however 
beneficial  it  may  promise  to  become  to  the  interests  of  the  com- 
pany. This  is  a  subject  of  vast  concern  to  the  ])ublic,  consider- 
ing the  large  amount  of  capital  invested  in  railways,  and  the 
uncontrollable  disposition  which  seems  almost  everywhere  to 
exist,  in  the  utmost  good  faith,  no  doubt,  to  improve  the  business 
of  such  companies,  by  extending  the  lines  of  communication,  and 

6  Clay  V.  Rufford,  5  De  G.  &  S.  768;  s.  c.  19  Eiig.  L.  &  Eq.  350. 

*  Ex  parte  Johnson,  31  Eng.  L.  &  Eq.  430.  One  railway  company  cannot, 
without  the  permission  of  parliament,  purchase  stock  in  other  railway  compa- 
nies. Salomons  v.  Laing,  12  Beav.  339,  377;  s.  c.  6  Railw.  Cas.  2S9.  In 
the  case  of  Ernest  v.  Nichols,  6  H.  L.  Cas.  401;  s.  c.  30  Law  T.  45,  decided 
in  the  House  of  Lords,  in  August,  1857,  the  subject  of  the  power  of  the  direc- 
tors of  a  joint-stock  company  to  bind  the  company,  is  discussed  very  much  at 
length,  and  the  conclusion  reached,  as  in  some  former  cases  (Ridley  v.  Ply- 
mouth, Stonehouse,  Devonport  Grinding  &  Baking  Co.,  2  Exeh.  711,  and 
some  others),  that  the  directors  could  execute  no  binding  contract  on  behalf 
of  the  company,  except  in  strict  conformity  to  the  deed  of  settlement  by 
which  the  company  was  constituted;  and  that  it  was  no  excuse  for  the  other 
contracting  party  to  say  he  was  ignorant  of  the  provisions  of  that  deed.  It 
was  his  folly  to  contract  with  a  director  or  directors,  under  such  ignorance, 
and  he  must  be  content  to  look  to  those  with  whom  he  contracted. 

(h)  Directors  by  charter  empow-  Co.,  15  Am.  &  Eng.  Railw.  Cas,  1. 
ered  to  manage  the  business  of  the  And  acceptance  of  rent  under  a  lease 
company,  have  no  power  to  lease  the  which  the  company  had  no  power  to 
road  without  the  assent  of  the  share-  make  will  not  impart  validity  to  the 
holders,  nor  vitally  to  modify  an  ex-  lease.  Ogdensburg  &  Lake  Cham- 
isting  lease.  Metropolitan  Elevated  plain  Railroad  Co.  v.  Vermont  &  Can- 
Railway  Co.   V.  Manhattan  Railway  ada  Railroad  Co.,  63  N.  Y.  176. 

[*o58] 


§  135.]  EXTENT   OF    AUTHORITY.  (]().') 

even  by  the  virtual  purcliase  of  oilier  extensive  works  more  or 
less  noai-jy  connected,  either  in  fact  or  in  iijjprchcnsioii,  with  the 
proper  business  of  the  conipanv .  In  an  KuL^dish  case  befon;  the 
Master  of  the  Rolls,  it  was  held,  that  wlicre  a  railway  company 
were  recpiired  by  their  charter  to  keej)  uj)  a  ferry  acconnnodation 
between  certain  points,  and  for  that  jiurpose  were  obli.Lred  to  have 
a  much  larger  number  of  steamboats  on  certain  days  than  upon 
ordinary  occasions,  they  were  not  acting  ultra  vires  in  emjdoying 
the  steamboats  for  excursions  to  a  point  beyond  the  ferry  and 
back,  when  not  required  for  the  purposes  of  the  ferry."  Tiie 
learned  judge  thus  defined  the  powers  of  railway  companies. 
After  saying  that  if  every  shareholder  but  one  assented,  the  com- 
pany could  not  carry  on  a  trade  perfectly  distinct  from  that  for 
which  they  were  constituted,  "it  is  impossible,"  saitl  the  Muster 
of  the  Rolls,  "  for  them  to  set  up  a  brewery,  —  they  cannot  carry 
on  a  trade  such  as  managing  a  packet  company."  —  '•  And  if  this 
were  the  ease  of  a  railway  com))any  embarking  in  the  formation 
of  a  packet  company,  for  the  *  i)urpose  of  carrying  passengers 
between  two  places,  or  even  for  the  mere  purpose  of  making  ex- 
cursions, I  should  be  of  opinion  it  was  not  justified.  But  I  am 
of  opinion,  that  no  capital  of  the  company  is  embarked  exjtressly 
and  solely  for  the  purpose  of  making  excursion  trips."  And  in 
the  Supreme  Court  of  the  United  States^  it  has  been  decided, 
that  separate  railway  corporations  had  no  right  to  consolidate 
their  roads  into  one,  and  put  them  under  one  management ;  which 
seems  to  us  a  very  questionable  }>ro|)osition,  to  say  the  h^ist,  since 
such  a  combination  of  management  is  obviously  the  only  thing 
which  will  be  adequate  to  produce  the  kind  and  d(\irree  of  concen- 
tration of  effort  and  management  in  the  carrying  forward  <tf 
railway  enterprises  in  this  country,  which  will  make  them  cither 
remunerative  or  useful  to  the  puldic.  And  as  there  is  no  national 
supervision  of  these  vast  interests,  we  must  find  it  either  in  the 
discretion  of  railway  directors  and  managers,  or  in  some  new  con- 
stitutional provisions  in  the  national  government,  adequate  to  the 

">  Forrest  t-.  Manchester,  SheflSelil,  &  Lincohishire  Railway  Co..  30  Bo.iv. 
40;  7  Jur.  n.  s.  749;  s.  c.  afTirmed  on  appe.il  in  Chancery.  7  Jnr.  N.  s.  t^87, 
but  on  the  ground  that  the  suit  was  illusory,  and  not  in  fact  the  suit  of  the 
plaintiff,  but  of  a  rival  company. 

8  Pearce  v.  Madison  &  Indianapolis  Ivailroad  Co..  21  How.  -IJl  Ihit  see 
Rutland  &  Burlington  Railroad  Co.  r.  Proctor,  '2'J  Vt.  03,  do. 

[•330] 


606  RAILWAY    DIRECTORS.  [PART   VI. 

exigency.  But  the  proposition  that  such  companies  connot  cstali- 
lish  a  steamboat  line  in  connection  with  their  business,  and  that 
their  joint  notes  given  for  the  purchase  of  boats  cannot  be  en- 
forced, is  unquestionable.^  (c) 

5.  There  can  be  no  doubt  the  courts  of  equity  hold  some  right- 
ful control  over  these  speculative  schemes  and  enterprises.  But 
they  lie  so  deeply  entrenched  in  the  general  spirit  of  the  age,  and 
receive  so  much  countenance  and  sympathy  from  kindred  enter- 
prises, in  almost  all  the  departments  of  business,  that  it  often 
becomes  extremely  difficult,  if  not  impossible,  to  fix  any  wcll- 
defmed  and  practicable  limits  to  the  operations  of  railway  com- 
panies, that  shall  not  allow  them,  on  the  one  hand,  the  power  of 
indefinite  extension  and  overwlielming  absorption  of  kindred 
enterprises,  or  which  will  not  be  regarded,  on  the  other,  as  a 
denial  of  fair  liberty  and  free  scope  to  carry  out  the  just  objects 
of  their  creation.  There  is  not  a  more  just  and  unexceptionable 
commentary  upon  this  difficult  and  important  subject,  than  in 
the  language  of  one  of  the  most  sober,  discreet,  and  learned 
of  the  English  equity  judges,  Lord  Langdale,  Master  of  the 
Ilolls.9 

^  Colman  v.  Eastern  Counties  Railroad  Co.,  10  Beav.  1;  s.  c.  4  Railw.  Cas. 
513.  The  managing  directors  of  a  railway  company,  with  the  view  of  increas- 
ing the  traffic  on  their  line,  entered  into  a  contract  with  a  steam-packet  com- 
pany, that  they  would  guarantee  the  proprietors  of  the  packet  company  a 
minimum  dividend  of  a  certain  per  cent  on  their  paid-up  capital  until  the  com- 
pany should  be  dissolved,  and  that,  on  a  dissolution,  the  whole  paid-up  capital 
should  be  returned  to  the  shareholders  in  exchange  for  a  transfer  of  the  assets 
and  properties  of  the  steam-packet  company.  One  of  the  shareholders  filed 
a  bill  on  behalf  of  himself  and  all  other  shareholders  who  should  contribute, 
except  the  directors,  against  the  company  and  the  directors,  and  obtained  an 
injunction,  ex  parte,  to  restrain  the  completion  of  the  contract.     It  was  held, 

(c)  A  charter  may  permit  such  con-  2.58.     But  it  has  also  been  held  that  a 

tracts.     Green  Bay  &  Minnesota  Rail-  company  may  be  liable  on  a  subscrip- 

road  Co.  v.  Union  Steamboat  Co.,  107  tion  to  secure  the  location  of  an  agri- 

V.  S.  98.     It  has  been  held  ultra  vires  cultural  fair,  although  there  is  a  defect 

of  a  company  incorporated  under  the  of  power  to  make  it,  if  it  is  not  in 

Mass.  statute  of   1S70  to  guarantee  violation  of  the  charter,  and  the  com- 

the  expenses  of  a  musical  festival,  al-  pany   has    thereby    induced    one    to 

though  in  the  belief  that  the  festival  expend   money   in   reliance    thereon, 

will  greatly  increase  traffic.     Davis  v.  State    Board,   &c.   v.  Citizens'    Street 

Old  Colony  Railroad  Co.,  131  ^ilass.  Railway  Co.,  47  Ind.  407. 
[*550] 


§  135.]  EXTENT   OP    AUTnOUITY.  C07 

*G.  In  an  English  casc,^*'  it  was  declared  by  the  Cotirl  of 
Chancery  that  the  directors  of  the  company  were  restricterl,  as  U) 

on  motion  to  dissolve  the  injunction,  that  an  objection  for  want  of  parties  to 
a  suit  so  framed  was  not  sustainable;  that  directors  have  no  right  to  enter  into 
or  to  pledge  the  funds  of  tiie  company  in  support  of  any  project  not  pointed 
out  by  tlieir  act,  although  such  project  may  tend  to  increase  the  trafhc  on  the 
railway,  and  may  be  assented  to  by  the  majority  of  tlie  shareholders,  and  the 
object  of  such  project  may  not  be  against  public  policy;  that  acquiescence  by 
shareholders  in  a  project  for  however  long  a  period,  affords  no  presumption 
that  such  project  is  legal;  that  an  objection  stated  by  affidavit  and  remainiiif^ 
unanswered,  that  the  plaintiff  was  proceeding  at  tlie  instigation  and  request 
of  a  rival  company,  did  not  deprive  him  of  his  right  to  an  injunction,  and  tlie 
motion  to  dissolve  the  injunction  was  refused,  with  costs.  The  case  was  after- 
wards mentioned  to  the  court,  on  behalf  of  the  defendants,  when  his  lordship 
stated,  that  the  injunction  was  meant  to  refer  only  to  the  guaranty  proposed 
to  be  given,  and  the  case  made  by  the  bill,  not  to  affect  any  arrangement 
which  the  directors  might  enter  into  with  any  steam-packet  company  respect- 
ing the  rates  and  tolls  to  be  charged  on  the  railway. 

In  Salomons  r.  Laing,  12  Beav.  3o9,  377;"  s.  c.  0  Railw.  Cas.  301.  much 
the  same  general  views  are  taken  of  the  powers  of  directors  and  of  the  effects 
of  acquiescence  on  the  part  of  shareholders.  See  supra,  §  50.  Where  the 
statute  prohibits  tiie  directors  of  a  company  from  being  concerned,  directly  or 
indirectly,  in  building  its  road,  a  contract  between  tlie  company  and  two  of 
its  directors,  for  that  purpose,  is  absolutely  void,  liarton  c.  i'ort  Jackson.  &c. 
Plank-Road  Co.,  17  Ikirb.  307. 

The  deed  of  a  joint-stock  banking  company  contained  provisions,  that  the 
directors  should  be  not  fewer  than  five  nor  more  than  seven;  that  three,  or 
more,  should  constitute  a  board,  and  be  competent  to  transact  all  ordinary 
business;  that  the  directors  should  have  power  to  compromise  debto;  and  that 
agents  ini^lit  be  appointed  by  the  directors  to  accept  or  draw  bills,  without 
reference  to  the  directors.  The  number  of  directors  became  reduced  to  four, 
and  three  executed  a  deed,  compromising  a  large  debt  due  the  comivuiy,  tak- 
ing from  the  debtor  a  mining  concern,  and  covenanting  to  indemnify  him 
against  certain  bills  of  exchange.  In  an  action  on  this  covenant,  held  that  it 
did  not  bind  the  company,  not  being  ordinary  business,  and  no  numlior  of 
directors  less  than  five  being  competent  to  transact  it.  And  query,  whether  a 
board  of  three  directors  could  transact  even  ordinary  business,  unle.-vs  wln-n 
the  board  consisted  of  five  only.     Kirk  v.  Hell,  10  Q.  D.  2yO;  s.  c  12  Eng. 


"  Stanhope's  case.  Law  Rop.  1  Ch.  Ap  101;  s.  c.  12  .Tur.  n.  s.  70.  revers- 
ing the  decision  of  the  Master  of  the  Rolls  in  s.  c.  11  Jur.  N.  s.  87*2;  Lord 
Belhaven's  case,  3  De  G.  J.  &  S.  41;  s.  c  11  Jur.  .v.  s.  572.  is  here  denied, 
and  Spackman's  case,  id.  207,  approved.  See  also  Ilouldsworth  r.  Kvans. 
Law  Rep.  3  H.  L.  263;  supra.  §  42,  pi.  4,  and  note:  Spackman's  case  atfirmed 
in  the  House  of  Lords,  Law  Rep.  3  H.  L.  171;  infra,  iu  uot€  13. 

[•560] 


G08  RAILWAY   DIRECTORS.  [PART   VI. 

*  the  extent  of  their  authority  to  bind  the  members,  by  the  terms 
of  the  deed  of  settlement  or  charter,  or  fundamental  constitution 

*  of  the  company ;  and  that  any  arrangement  ultra  vires  of  the 
directors,  by  which,  in  consideration  of  a  money  payment  by  a 

*  shareholder  desiring  to  retire,  they  declared  his  shares  forfeited, 
is  not,  nor  can  any  lapse  of  time  render  it,  binding  on  the  general 
body  of  the  shareholders,  unless  it  is  shown,  not  only  that  the 
latter  might  have  been,  but  also  that  they  actually  were,  fully 
aware  of  the  transaction.  This  seems  to  us  to  be  placing  the 
question  of  ratification  of  an  act  ultra  vires  upon  its  only  safe  and 
salutary  basis.  There  should  always  be  either  express  or  pre- 
sumptive evidence  of  actual  and  unconstrained  acquiescence  en- 
tirely satisfactory  to  the  court,  in  order  to  bind  a  principal  by  any 
act  of  his  agent,  beyond  the  proper  limits  of  the  authority  dele- 
gated to  him.  This  is  a  principle  of  universal  acceptance  and 
application  in  the  law  of  agency. 

L.  &  Eq.  385.  But  where  a  series  of  contracts  have  been  openly  made  by  the 
officers  of  a  corporation,  within  the  knowledge  of  tlie  corporators,  who  have 
acquiesced  in  and  derived  benefit  from  them,  the  contracts  are  binding  on  the 
corporation,  although  not  clearly  authoiized  by  its  charter.  And  if  it  be  a 
municipal  corporation  it  is  bound  to  pay  whatever  is  due,  by  taxes,  if  it  has 
no  other  means.  Alleghany  City  v.  JMcClurkan,  li  Penn.  St.  SI.  See  also 
Houldsworth  v.  Evans,  Law  Rep.  3  H.  L.  203,  per  Lord  Craxworth;  also 
Evans  v.  Smallcombe,  id.  249;  Spackman  v.  Evans,  id.  171.  So  also  where, 
by  consent  of  the  board  of  directors,  a  general  agent  was  employed  in  making 
contracts  for  the  purchase  of  the  right  of  way,  and  was  in  the  habit  of  agree- 
ing on  the  price,  by  submission  to  arbitrators,  and  the  awards  had  been  paid 
in  such  cases  by  the  company's  financial  officers,  under  a  general  resolution  to 
pay  the  amount  these  agents  directed,  it  was  held  that  such  agent,  and  an- 
other agent  employed  to  assist  in  the  same  service,  had  power  to  submit  the 
question  of  price,  in  such  cases,  to  arbitrators,  and  that  their  award  was  bind- 
ing on  the  company.  And  it  is  not  requisite  that  the  contract  of  submission 
should  be  under  the  seal  of  the  company,  nor  will  it  be  avoided  by  tiie  agent 
attaching  a  seal  to  its  execution,  by  himself.  "Wood  v.  Auburn  &  Rochester 
Railroad  Co.,  4  Seld.  IGO.  But  the  facts  that  the  directors  have  executed 
some  ten  or  twelve  similar  contracts,  and  that  such  contracts  have  been  pub- 
lished in  the  annual  reports,  and  distributed  to  the  stockholders  without  objec- 
tion, although  evidence  of  acquiescence  on  their  part,  is  not  evidence  of  the 
enlargement  of  the  charter  powers  of  the  company,  so  as  to  bind  the  company, 
as  between  them  and  the  primary  parties  entering  into  the  contract  with 
them.  McLean,  J.,  in  Zabriskie  v.  Cleveland,  Columbus,  &  Cincinnati  Rail- 
road Co.,  10  Am.  Railw.  T.  No.  15;  s.  c.  23  How.  381;  1  Redf,  Am.  Railw. 
Cas.  61 ;  supra,  §  56. 

[*561-*o63] 


§  135.]  EXTENT  OF  AUTHORITY.  009 

7.  One  of  the  recent  Knj^^lisli  ca.scs  ^^  declares,  that  the  power  of 
the  dircctoi'S  to  give  a  bill  of  sale,  as  security  for  debts,  is  incident 
to  all  trading  corporations,  although  it  be  not  exj)ressly  confci-red 
by  the  articles  of  association  or  the  constitution  of  the  company. 
Mr.  Chief  Justice  Eule  said,  "  The  fact  that  the  company  carries 
on  a  trade  is  a  sullicient  answer  to  tlie  first  objection.  lOverv 
trading  company  must  have  the  power  of  giving  security  for  the 
debts  which  it  contracts." 

*  8.  Where  power  is  given  in  the  cliarter  of  a  corporation  or  in 
the  deed  of  settlement,  for  the  directors  to  confirm  any  contract 
made  by  provisional  directors,  or  any  jiersons  acting  as  directors 
of  the  company  in  its  formation,  the  directors  alone  have  power 
to  confirm  such  contracts  by  deed.^  But  the  directors  have  no 
power  to  make  any  contract  under  seal  binding  upon  the  corpora- 
tion, if  the  formalities  prescribed  by  its  constitution  have  not  been 
complied  with.^^ 

9.  The  directors  being  but  the  servants  or  trustees  of  the  com- 
pany, it  cannot,  as  before  stated,  retain  money  obtained  from  one 
by  the  fraudulent  sale  by  the  directors  of  the  company  j)roperty, 
unless  the  purchaser  has  by  his  own  misconduct  precluded  him- 
self from  redress.^*  It  was  here  held,  that  directors  are  not  jus- 
tified in  using  reports  to  induce  a  sale  of  property,  which  were 
true  at  the  time  they  were  made,  if  not  true  at  the  time  they  are 
so  used. 

10.  Hut  the  last  case  was  reversed  in  the  House  of  Lords,  and 
the  decree  of  Vice-Chancellor  Stuart  ^^  afiirmed  with  costs, —  his 
Honor  not  having  awarded  costs,  —  on  the  same  grounds  mainly 
■which  the  Vice-Chancellor  had  assumed :  that  as  no  specific  rei>- 
resentations  had  been  made  by  the  company,  and  no  sjtecilic  in- 
quiry by  the  plaintiff,  his  case  failed  on  that  point ;  and  inasnuicli 
as  he  completed  the  jturchase  after  being  informed  of  the  facts 

11  Sliears  v.  Jacobs,  Law  Rep.  1  C.  T.  513;  s.  c  1"J  Jiir.  x.  s.  7S.j. 

12  Wilkiiis  I',  lloebiick,  1  Drewry,  :281. 

13  Ilambro  v.  Hull  &  I^oudoii  Fire  Insurance  Co.,  3  II.  &  N.  789.  See, 
also,  Eastwood  v.  Bain,  3  II.  &  N.  73S;  Brvou  v.  Metmpolitan  Saloon  Omni- 
bus Co.,  3  De  G.  &  J.  1-23;  Ex  parte,  Baker,  4  Drewry  .S:  S.  o.j;  s.  c.  0  Jur. 
N.  s.  240. 

"  Conybeare  v.  New  Brunswick  &  Canada  Railway  Co..  1  Do  G.  F.  &  J. 
57S;  s.  c.  G  Jur.  x.  s.  51S;  supra,  §  41,  pi.  2;  Re  Cork  &  Youghal  llailw.iy 
Co.,  17  W.  R.  S73. 

15  G  Jur.  X.  s.  164. 
VOL.  I.  — 39  [•504] 


GIO  RAILWAY   DIRECTORS.  [PART   VI. 

as  to  defect  of  title,  he  could  not  complain  of  any  previous  mis- 
representation.'^ 

11.  ]>ut  it  was  declared  in  the  House  of  LordSj^*^  that  if  reports 
arc  made  to  tlie  stockholders  of  a  company  by  their  directors,  and 
adopted  hy  them  at  one  of  tlicir  a])j)ointcd  meetings,  and  after- 
wards cii'culated  in  their  ])ublished  reports,  they  are  binding  upon 
the  company.  And  if  erroneous  statements  in  such  reports  can 
be  clearly  shown  to  have  been  tlie  proximate  and  immediate  cause 
*  of  shares  having  been  bought  from  the  company  by  any  individ- 
uals, a  court  of  equity  will  not  permit  the  company  to  retain  the 
benefit  of  the  contract. 

12.  ]5ut  when  a  company  issues  a  prospectus,  a  person  contract- 
ing to  take  shares  on  the  faith  of  it  has  the  right  to  claim,  not 
only  that  he  shall  not  be  misled  by  any  statements  actually  false, 
but  that  he  shall  be  correctly  informed  by  it  of  all  tlie  facts,  the 
knowledge  of  whicli  might  reasonably  have  deterred  him  from  en- 
tering into  tlie  contract.^''  But  the  false  representation  of  an 
officer  is  not  tliat  of  the  company,  even  if  made  at  the  ofiice.'^ 
But  to  become  the  act  of  the  comjiany  it  must  be  contained  in  a 
report  of  the  company  adopted  at  a  regular  meeting. '^ 

13.  The  directors  of  a  railway  comf)any  are  not  justified  in  act- 
ing on  an  old  resolution  authorizing  the  issue  of  shares  after  the 
purpose  for  which  the  issue  was  authorized  has  ceased  to  be  avail- 
able ;  ^^  nor  in  issuing  shares,  supposing  them  to  possess  the  power, 
for  the  express  purpose  of  procuring  votes  to  influence  a  coming 
general  raecting.^^  An  injunction  wnll  be  issued  to  restrain  such 
action  of  the  directors,  it  not  being  a  question  of  the  internal 
management  of  the  company,  but  an  attempt  to  prevent  such 
management  being  legitimately  carried  on. 

14.  In  a  trial  2'J  before  Martin,  B.,  where  it  appeared  that  the 

i«  9  II.  L.  Cas.  711 ;  s.  c.  8  Jur.  n.  s.  575.  See  here  Lord  Chelmsford's 
strictures  on  the  loose  mode  of  stating  fraud.  See  In  re  Mixer's  case,  4  De  G. 
&  J.  575.  See,  also,  CuUen  v.  Thompson,  4  Macq.  Ap.  Cas.  424,  in  the  House 
of  Lords,  where  all  tlie  officers  of  a  company  participating  in  a  fraudulent 
representation  are  held  liable,  although  but  part  signed  the  report.  9  Jur. 
N.  s.  85. 

"  New  Brunswick  &  Canada  Railway  &  Land  Co.  v.  Muggeridge,  1  Drewry 
&S.  303:  s.  c.  7  Jur.  n.  s.  132. 

18  In  re  Royal  British  Bank,  3  Law  T.  n.  s.  843. 

'0  Fraser  i-.  Whalley,  2  II.  &  M.  10. 

20  Bale  r.  Clelland,  4  F.  &  F.  117;  Kisch  r.  Venezuela  Railway  Co.,  3  De  G. 
[*5G5] 


§  135.]  EXTENT   OF    AUTHORITY.  611 

prulits  of  tlic  company  had  boon  studiously  misrepresented  hy 
the  manner  of  keeping  the  books,  and  a  large  apparent  jtrufit  on 
the  year  preceding  the  report  presented,  by  not  bringing  all  the 
cost  of  material  forward  into  the  account  of  the  year  in  which 
it  was  consumed,  it  was  held  that  any  error  in  the  mere  mode  of 
keeping  the  accounts  would  not  be  evidence  of  fraudulent  repre- 
sentation, but  the  falsification  of  facts  and  figures  was  so,  as 
against  any  of  the  officers  of  the  company  who  were  aware  of  the 
issue  of  the  prosi)ectus,  and  had  aided  or  connived  at  the  mode  in 
which  it  was  made  up. 

*  15.  It  was  also  held  in  the  last  case,  that  as  the  statute  re- 
quired the  dividend  to  lie  declared  by  the  directors,  though  with 
the  sanction  of  the  shareholders,  if  to  the  knowledge  of  the 
directors  and  officers  of  the  company  such  dividend  so  declared 
by  the  directors  was  paid  otherwise  than  out  of  profits,  they 
arc  responsible  for  it,  and  for  the  circulation  of  any  declaration  of 
it,  acted  upon  by  innocent  shareholders. 

IG.  Directors  may  ratify  any  contract  made  on  their  behalf 
which  they  have  power  to  make  themselves.^'  And  where  the 
constitution  of  the  corporation  gives  to  the  directors,  with  the 
sanction  of  an  extraordinary  meeting  of  the  shareholders,  by  a 
majority  of  two-thirds,  power  to  do  any  act  which  might  be  done 
with  the  consent  of  all  the  shareholders,  the  directors  may  lease 
the  entire  business  of  the  company  in  that  modc.^ 

17.  The  board  of  directors  of  a  railway  company  are  to  be  re- 
garded as  its  immediate  representatives,  and  oecuj)y  tlie  relation 
of  master  to  the  different  classes  of  emi)loycs  engaged  in  opcM-at- 
ing  the  road,  and  performing  the  work  or  transacting  the  business 
of  the  company  in  any  of  its  dejiartinents.^^ 

18.  Although  the  directors  of  a  railway  company  cannot  a|>[)ly 
the  funds  to  any  ])urpose,  ultra  virrs,  of  such  company,  yet  where 

J.  &  S.  122;  s.  c.  11  Jar.  x.  s.  01(5.  The  question  of  fraud  by  means  of  in- 
ducing a  siiaroholder  to  buy  his  shares  on  a  niisapprt'lionsion  of  tlio  true 
condition  of  the  company,  is  one  of  fact,  to  be  judcfod  of  by  tlio  jury  on  a 
consideration  of  all  the  facts,  and  is  mainly  one  of  intent.  Cleveland  Iron 
Co.  V.  Stephenson,  2  F.  &  F.  428. 

"  Wilson  V.  West  IIartlei>ool  Harbor  &  Hallway  Co..  31  Beav.  1S7;  s.  c.  2 
De  G.  J.  &  S.  475;  11  Jur.  n.  s.  121. 

--  Featherstonhaugh  v.  Porcelain  Co.,  Law  Ivop.  1  Eq.  31S;  s.  c.  11  .Tur. 
X.  s.  904. 

23  Columbus  &  IndianaiKjlis  Central  Riiilroad  Co.  v.  Arnold,  31  Tud.  171. 


612 


RAILWAY    DIRECTORS. 


[part  VI. 


they  have  done  so;  with  the  hona  fide  purpose  of  serving  the 
public  interest  and  convenience,  by  diverting  a  highway,  a  court 
of  equity  will  not  compel  the  company  to  restore  the  highway,  so 
as  to  bring  their  work  intra  vires,  if  the  result  will  be  to  cause 
greater  inconvenience  to  the  public,  or  those  of  the  public  making 
the  complaint.2* 

19.  Neither  the  president  or  any,  or  all,  of  the  directors  of  the 
company  have  any  inherent  power  to  bind  the  company.  Their 
powers  depend  upon  the  general  rules  of  the  law  of  agency. 
Where,  therefore,  the  president  of  a  corporation  executed  a  con- 
tract on  their  behalf,  without  previous  authority,  and  the  company 
subsequently  accepted  the  benefits  of  such  contract,  having 
knowledge  of  the  means  by  which  they  were  obtained,  it  was 
held  to  operate  as  a  ratification  of  the  contract,  and  to  make  it 
binding  upon  the  corporation  from  the  first.^ 


SECTION    11. 


Personal  Liahility  of  Directors. 


1.  Lawful  acts  of  directors.     Directors 

not  personally  liable. 

2.  Otherwise  if    they  undertake  to    be 

personally  liable. 

3.  So  if  they  assume  to  go  beyond  their 

powers. 


Extent  of  powers  often  affected  by 
usage  and  course  of  business. 

6.  Contract  beyond  the  power  of  the 
company,  or  not  in  usual  form, 
directors  personally  liable. 


§  136.  1.  The  English  statute  enacts,  what  was  the  common 
law  indeed,  that  no  director  should  become  personally  liable  by 
reason  of  any  contract  made,  or  any  act  done,  on  behalf  of  the 
company,  within  the  scope  of  the  authority  conferred  by  the  stat- 

2*  Attorney  General  v.  Ely,  Iladdenham,  &  Sutton  Railway  Co.,  Law  Rep. 
6  Eq.  lOG.  Tlie  information  was  dismissed  without  costs,  and  without  preju- 
dice to  any  proceeding  at  law. 

25  Perry  v.  Simpson  Water  Proof  Manufacturing  Co.,  37  Conn.  520.  It 
was  here  held  that  notice  to  one  of  two  general  agents  of  a  corporation  was 
notice  to  the  company  and  to  the  other  agent.  The  declaration  of  such 
general  agent  being  the  notice  of  the  company  to  the  opposite  party,  that  the 
president  is  authorized  to  contract  on  behalf  of  the  corporation,  and  such 
party  having  acted  on  the  faith  of  such  declaration,  the  company  is  estopped 
from  denying  such  authority.     See  also  Whitwell  v.  Warner,  supra,  note  2. 

[*566] 


§  13G.]  PERSONAL    LIABILITY.  C13 

utes  of  the  legislature  and  the  company,  or,  as  it  is  expressed, 
"  by  reason  of  any  lawful  act  done  by  them."  (a)  Cori)orati<in» 
arc  not,  in  general,  responsible  fur  the  unlawful  or  unauthoriz.d 
acts  of  their  oflicers.^  But  the  corporation  may  be  held  responsi- 
ble *  for  the  publication  of  a  libel,  Ijy  its  agents  and  scrvanls  in 
the  due  course  of  the  business  of  the  company,  as  wliere  the 
company  were  the  owners,  and  by  their  agents  managed  the 
electric  telegraph  along  their  line,  and  sent  a  despatch  to  the 
effect  that  the  jtlaintiffs  bank  "had  stopj)ed  payment,"  wiiich 
proved  not  to  be  the  fact.  This  despatch  was  sent  for  their  own 
protection,  in  order  to  insure  their  agents  against  taking  bills  on 
such  bank.  But  the  message  went  beyond  what  was  necessary 
for  that  purpose,  and  thus  made  the  company  responsible  as  for 
a  gratuitous  ])ublication.  It  would  have  answered  all  purposes 
to  have  directed  their  agents  not  to  take  the  bills,  without  assign- 
ing any  reason.^  So,  too,  in  Philadelphia,  Wilmington,  and 
Baltimore  Railway  v.  Quigley,^  it  was  decided,  that  a  railway  may 
become  liable  for  a  libel  in  publishing  and  circulating  amoni;  its 
members  a  statement  of  the  report  of  the  directors,  and  the  evi- 
dence on  which  it  is  based,  although  the  report  itself,  when  maile 
to  the  stockholders  in  good  faith,  and  for  their  information  ujxtn 
matters  affecting  their  interest,  would  be  reLraided  as  a  jwivi- 
leged  communication. 

2.  But  directors  liave  been  held  lial)le,  in  many  cases,  ]>orson- 
ally,  where  the  debt  was  that  of  the  company,  and  where  it  so  ap- 
peared upon  the  face  of  the  contract.  As  ujion  a  promissory 
note,  which  was  expressed,  "jointly  and  severally  we  promise  to 
pay,  .  .  .  value  received  for  and  on  behalf  of  the  Wesleyan  News- 
paper Association.     S.  &  W.,  Directors."  *     But  it  is  ordinarily 

^  Mitchell  V.  Rockland,  41  Mo.  3(5:].  Commis.<!ionprs  to  accppt  siiKsorip- 
tions  for  a  corporation,  who  are  by  the  charter  requircil  to  jjive  notice  of  thfl 
time  and  place  of  openinpf  the  books,  may  give  such  notice  by  a  majority  of 
their  number.     Penobscot  Railroad  Co.  r.  White,  41  Me.  'A2. 

2  Whitfield  V.  South  Ea.^tern  Railway  Co.,  1  Ellis,  IL  &  K.  115;  s.  c.  4  Jur. 
N.  s.  688. 

8  21  How.  202;  s.  c.  2  Redf.  Am.  Railw.  Cas.  :W0. 

*  Ilealey  v.  Story,  3  Excli.  3.     Ai.dkiison,  B.,  said  the  terms  "jointly  and 

(a)  They  are  not  liable  personally,     mannor.     Heattio  r.  Ebury.  L.iw  R«'p. 
for  instance,  on  an  order  to  a  bank  to     7  II.  L.  102. 
honor  checks  drawn   in  a  particular 

[•567] 


614  RAILWAY   DIRECTORS.  [PART   VI, 

a  question  of  intention,  whether  the  directors  are  personally 
liable  if  they  act  within  the  powers  conferred  by  the  company.^ 
*  3.  But  where  the  directors  of  a  railway  assume  to  do  an  act 
exceeding  their  power,  as  accepting  bills  of  exchange,  which  docs 
not  come  within  the  ordinary  business  of  railways,  they  will  be 
personally  liable.^ 

severally,"  imported  a  personal  undertaking,  inasmuch  aS  they  could  properly 
have  no  application  to  the  company.  But  see  Roberts  v.  Button,  14  Vt.  195, 
and  cases  cited,  where  the  subject  is  examined  more  at  length  than  space  will 
here  allow.  Dewers  v.  Pike,  Murph.  &  II.  131.  But  in  the  case  of  Lindus 
V.  Melrose,  3  II.  &  N.  177,  before  the  Court  of  Exchequer  Chamber,  it  was 
held  that  a  promissory  note  expressed,  "  For  value  received  we  jointly  promise 
to  pay,"  and  signed  by  three  of  the  directors  of  a  joint-stock  company,  and 
countersigned  by  the  secretary,  and  expressed  to  have  been  on  account  of  stock 
of  the  company,  did  not  bind  the  signers  personally,  but  imported,  on  its  face, 
a  contract  on  behalf  of  the  company. 

5  Tyrrell  v.  Woolley,  1  Man.  &  G.  809;  Bm-rell  i-.  Jones,  3  B.  &  Aid.  47. 
In  Davidson  v.  Tulloch,  3  Macq.  Ap.  Cas.  783;  s.  c.  G  Jur.  n.  s.  543,  before 
the  House  of  Lords,  it  was  determined,  that  an  action  may  be  maintained 
against  the  directoi'S  of  a  company  in  respect  of  any  transactions  which  the 
body  of  the  shareholders  could  not  sanction,  but  in  respect  of  any  transactions 
which  they  might  sanction,  although  the  directors  might  not  have  been  justi- 
fied in  what  they  were  doing,  there  can  be  no  right  of  action.  And  directors 
are  not  liable  for  defect  of  authority  to  make  a  conveyance  of  property,  the  sale 
of  which  has  been  broken  off  by  an  objection  of  the  purchaser's  solicitor,  that 
the  directors  had  not  the  requisite  authority.  "Wilson  v.  Miers,  10  C.  B.  n.  s. 
348.  See  also  Nowell  v.  Andover  &  Red-bridge  Railway  Co.,  3  Gif.  112;  s.  c. 
7  Jur.  N.  s.  839.  The  company  is  not  liable  to  make  good  any  loss  sustained 
through  the  false  representations  of  its  officers,  although  incidentally  benefited 
thereby,  unless  they  entei-ed  into  the  scheme  for  the  purpose  of  such  gain. 
Barry  v.  Croskey,  2  Johns.  &  H.  1. 

e  Owen  v.  Van  Uster,  10  C.  B.  318 ;  Roberts  v.  Button,  14  Yt.  195.  They 
are  in  all  cases  responsible  for  the  consequences  of  omission  of  duty,  to  the 
same  extent  as  other  trustees.  Turquand  r.  Marshall,  Law  Rep.  6  Eq.  112; 
8.  c.  Law  Rep.  4  Ch.  Ap.  370,  and  referred  to  in  Overend,  Gurney  &  Co.  r. 
Gibb,  Law  Rep.  5  H.  L.  480,  where  the  case  is  reviewed  and  explained.  And 
where  the  directors  certified  that  they  had  appointed  an  agent  with  certain 
powers,  and  it  proved  that  they  had  no  such  power,  they  were  held  personally 
responsible,  although  acting  in  good  faith.  Australasia  Bank  v.  Cherry,  17 
TV.  R.  1031.  But  if  the  erroneous  misrepresentation  of  the  directors  concerns 
matter  of  law  only,  and  involves  no  eiTor  of  fact,  the  directors  will  not  be- 
come personally  responsible.  Beattie  v.  Ebury,  20  W.  R.  994;  s.  c  Law  Rep. 
7  Ch.  Ap.  777.  And  see  the  opinion  of  Mellish,  L.  J.  An  agent  whose 
conduct  is  merely  imprudent  will  not  make  himself  personally  responsible  for 
the  consequences,  unless  he  acted  rashly  or  recklessly,  so  as  to  be  guilty  of 
[*568] 


§  130.]  PERSONAL   LIAUILITV.  Olo 

4.  But  the  business  of  niihvays  is  su  much  extended  in  this 
country,  as  borrowers  of  money,  carriers,  and  contract<jrs,  in  vari- 
ous ways,  that  it  is  not  easy  to  determine,  except  fn^m  itaeh  par- 
ticular case,  how  far  tlie  directors  may  draw  or  imhjrse  bills,  or, 
indeed,  what  particular  acts  they  may  or  may  not  do.  In  one 
case  the  question  of  the  extent  of  corporate  powers  is  consider- 
ably discussed,'  and  it  was  held  that  the  exercise  of  such  powers 
must  be  conferreU  by  their  charters,  but  that  it  is  the  duty  uf 
courts  to  give  the  charters  such  a  construction  as  to  effect  the 
leading  purposes  of  the  grant,  where  that  can  be  done  consistently 
with  the  grant ;  and  that  business  corjmrations  have  the  ])Ower 
to  make  such  contracts  and  in  such  forms  as  are  re(iuisitc  U) 
accomplish  the  purposes  of  the  grant,  having  regard  to  any 
special  limitations  contained  in  such  grants,  and  that  jtrcjmissory 
notes  or  bills  made  or  received  by  such  corjujratious  are  prinui 
facie  valid,  but  that  it  is  competent  to  show  that  the  transactions 
out  of  which  they  arise  are  not  within  the  powers  of  the  corpora- 
tion, and  thus  defeat  their  operation.  In  another  case  ^  it  *  was 
held,  that  prima  facie  a  railway  company  had  power  to  execute 
promissory  notes  for  its  legal  indebtedness,  and  that  it  could  do 
this  only  by  its  agents  ;  that  no  written  or  sealed  authority  to  the 
agent  was  requisite;  nor  that  the  contract  should  be  under  seal 
unless  specially  so  required  by  the  charter;  that  it  was  not 
important  to  ])rove  the  consideration,  as  the  law  will  make  tlic 
same  implications  in  favor  of  the  note  of  a  corporation  as  in  other 
cases. 


crassa  negligentia.  The  directors  of  a  company  formed  for  the  exjiress  pur- 
pose of  buying  the  business  of  anotlier  company,  and  having  expivss  i)Ower8 
to  do  so,  in  making  tlie  purchase,  are  merely  agents,  and  not  truslet-s,  and 
will  not  be  held  responsible  unless  the  selling  company  was  known  to  be  in 
desperate  circumstances.  Overend  v.  Gibb,  Law  llep.  5  II.  L.  180.  Tho 
dissenting  stockholders  may  maintain  a  bill  in  equity  against  the  directors  of 
a  corporation  for  perpetrating  a  fraud  against  the  company,  by  tijo  control 
of  the  same  through  the  ownership  of  a  majority  of  the  stock,  and  it  is  not 
indispensable  to  join  a  majority  of  the  directors  as  defendants.  Ilrewer  r. 
Boston  Theatre,  101  Mass.  IjTS. 

■^  Straus  V.  Eagle  Insurance  Co.,  5  Ohio  St.  50. 

8  Hamilton  v.  Newcastle  &  Danville  Railroad  Co..  0  Ind.  .'J.'>0;  Marion  & 
Mississinewa  Railroad  Co.  i'.  Hodge,  id.  10:}.  In  Massac hu.setts  it  w.as  held 
that  the  only  remedy  under  the  late  statute  for  a  corjwrate  tlebt,  against  an 
officer  of  the  corporation,  was  in  equitv-     IJond  v.  Morse,  9  Allen.  171. 

[•5(30] 


616 


RAILWAY   DIRECTORS. 


[part  VI. 


5.  By  the  construction  of  the  English  statutes,  if  a  trustee  or 
director  of  any  public  work  made  a  contract  for  any  matter  not 
provided  for  in  the  special  acts  of  the  company,  or  by  the  general 
statutes  applicable  to  the  subject,  or  in  a  different  form  from  that 
so  provided,  he  is  taken  to  have  intended  to  become  personally 
responsible.^ 

6.  Thus  where  a  check  on  the  company's  bankers,  for  payment 
to  a  third  party  of  the  company's  money,  was  drawn  by  three 
directors  in  the  name  of  the  company,  but  the  document  was 
signed  by  them  in  their  own  names,  and  countersigned  by  the 
secretary  of  the  company,  adding  to  his  name  "  Secretary,"  and 
a  stamp  bearing  the  name  of  the  company  was  affixed,  but  the 
three  directors  did  not  appear,  on  the  face  of  tlie  check,  to  be 
directors  or  to  sign  as  such,  it  was  held  that  it  did  not  purport 
to  be  the  check  of  the  company,  and  was  not  binding  on  them.^'^ 


SECTION  III. 


Compensation  for  Service  of  Directors. 


In  England,  directors  not  entitled  to 
compensation  for  services. 

Company  may  grant  an  annuity  to  a 
disabled  officer,  tliougli  not  spe- 
cially empowered. 


3.  In  tliis  country  directors  entitled  to 

compensation,  in  conformity  to  tlie 
order  of  the  board. 

4.  Some  states  follow  the  Englisli  rule. 

5.  Official  bond  strictly  limited  to  term 

for  wliicli  officer  is  elected. 


§  137.  1.  In  England,  in  the  absence  of  contract,  or  usage 
from  which  one  might  be  inferred,  directors  of  railways  and  other 
corporations  *  are  not  entitled  to  compensation  for  services  as 
directors.  This  is  regarded  as  an  office,  and  so  an  honorary  ser- 
vice. And  a  resolution  of  the  board  of  directors  tliat  com- 
pensation should  be  allowed  for  certain  specified  services,  not 
being  under  seal,  so  as  to  amount  to  a  by-law,  will  not  entitle 


^  Parrott  v.   Eyre,   10  Binfj.   2S3;  Wilson  v.   Goodman,  4  Hare,  54,  62; 
Higgins  t'.  Livingstone,  4  Dow,  P.  C.  341. 

^<>  Serrell  v.  Derbyshire,  Staffordshire,  &  Worcester  Junction  Railway  Co.,  19 
Law  J.  N.  s.  C.  P.  371;  s.  c.  9  C.  B.  811.  It  would  .seem,  that  without  much 
latitude  of  construction,  this  case  might  have  been  otherwise  ruled,  and  been 
more  satisfactory. 

[*570] 


§  137.]  COMPENSATION   FOR  SERVICE   OP^   DIRECTORS.  017 

such  director  to  sue  the  company  for  compensation  for  such  ser- 
vice.^ (a) 

2.  But  it  would  seem,  where  the  company  voted  an  annuity  to 
a  disabled  oflicer,  in  the  nature  of  a  retiriu'^  jiension,  and  the 
directors,  by  deed,  in  the  name  of  the  company,  made  a  formal 
grant  in  conformity  with  the  vote,  that  the  contract  is  binding 
upon  the  comjiany,  although  no  power  is  expressly  given  by  llieir 
charter  to  grant  annuities.^ 

3.  Railway  directors  in  this  country  arc  generally  allowed 
compensation,  but  cannot  recover  it  beyond  the  rate  fixed  by  tlie 
general  resolutions  of  the  board.^  (i)  And  where  a  director  acts 
as  a  member  of  the  executive  committee  of  the  board,  or  in  seUing 
the  bonds  of  the  company,  his  service  is  to  be  regarded  as  in  his 
capacity  of  director,  and  the  amount  of  compensation  is  limited 
to  that  allowed  directors.^ 

^  Dunstan  v.  Imperial  Gas  Light  Co.,  3  B.  &  Ad.  125.  But  see  Ilall  v. 
Vermont  &  Massachusetts  Raih'oad  Co.,  28  Vt.  401.  The  rule  of  law  in  that 
respoct  is  diiYerent  in  this  country,  a  resolution  of  the  board  of  directors  having 
the  same  force,  whether  under  seal  or  not.  Infra,  §  143;  supra,  §  130.  See 
also  Gaskell  v.  Chambers,  5  Jur.  N.  s.  52;  s.  c.  20  Beav.  300.  In  this  ca.se  the 
directors  transferred  the  business  of  the  company  to  another  company,  and  re- 
ceived from  the  latter  a  large  sum  for  compensation,  and  withheld  the  partic- 
ulars from  their  members.  It  was  held  tliat  tliey  were  trustees  of  tlie  money 
for  the  members,  and  tlie  directors  were  ordered  to  pay  it  into  court.  But  the 
directors  are  not  the  servants  of  the  individual  shareholders,  and  therefore  such 
an  one  who  feels  aggrieved  must  seek  redress  through  the  company  for  any  mis- 
conduct of  the  directors.  Orr  v.  Glasgow,  Airdrie  &  Monkland's  Junction 
Railway  Co.,  3  Macq.  Ap.  Cas.  799;  8.  c.  6  Jur.  x.  s.  877. 

2  Clarke  v.  Imperial  Gas  Light  Co..  4  B.  &  Ad.  315. 

8  Hodges  I'.  Rutland  &  Burlington  Railway  Co.,  20  Vt.  220.  But  wliore  a 
director  performs  services  for  the  company,  disconnected  witli  his  onict\  he  is 
not  restricted,  in  regard  to  the  compensation,  by  any  resolution  of  the  board 
in  regard  to  the  compensation  to  be  made  the  directors.  Henry  v.  Rutland 
&  Burlington  Railway  Co.,  27  Vt.  485.  In  another  case  it  was  ludd,  that 
railway  directors,  as  a  general  rule,  are  not  entitled  to  compen.sation  for  tiieir 
personal  'services,  unless  rendered  under  some  expr-^ss  contract.  Hall  r.  Ver- 
mont &  Massachusetts  Railroad  Co.,  28  Vt.  4ol.  But  an  allowance  to  a  direc- 
tor for  extra  services  made  by  a  board  of  which  the  claimant  w.xs  one,  and  his 
presence  indispensable  to  constitute  a  quorum,  is  void,  and  any  stocklioldor 
may,  on  behalf  of  himself  and  others,  enjoin  the  treasurer  from  payment. 
Butts  V.  Wood,  37  N.  Y.  317. 

(a)  Nor  can  the  company,  at  an     dered.     Hutton  r.  W.>st  Cork  Railway 
ordinary  general  meeting,  make  a  gift     Co.,  Law  Rep.  23  Ch.  054. 
to  directors  for  services  already  rcn-  {!>)  In    Illinois    they  can    recover 

[•o70] 


618  RAILWAY   DIRECTORS.  [PART  VI. 

*  4.  Some  of  the  American  states  adopt  the  English  rule  that 
railway  directors  cannot  recover  compensation  for  services  ren- 
dered in  obtaining  subscriptions  to  the  capital  stock  of  the  com- 
pany, before  its  organization ;  or  for  any  other  services,  unless  they 
are  most  unquestionably  beyond  the  range  of  their  official  duties.* 
And  it  is  here  determined  that  it  would  make  no  difference  that 
the  services  were  rendered  under  an  expectation  and  an  under- 
standing among  those  engaged  in  the  enterprise  that  the  services 
should  be  compensated  by  the  company  after  its  organization. 
And  in  addition  to  the  technical  embarrassment  of  holding  the 
company  bound  by  any  such  arrangements  before  its  existence, 
the  policy  of  the  law  is  wholly  opposed  to  them.*  We  think  this 
by  far  the  most  salutary  rule  upon  the  subject. 

5.  It  is  scarcely  necessary  to  state  that  official  bonds  for  faith- 
ful administration  by  officers  of  corporations  arc  to  be  limited 
strictly  to  the  term  for  wdiich  such  officer  was  elected.  And  if 
the  office  is  annual,  and  the  officer  continued  from  year  to  year, 
without  the  renewal  of  the  bond,  and  the  officer's  annual  account 
is  passed  from  year  to  year,  until  finally  a  default  occur  at  a 
remote  period  from  that  covered  by  the  bond,  there  is  no  indem- 
nity to  be  obtained  under  the  bond.^ 

•*  Xew  York  &  New  Haven  Railroad  Co.  v.  Ketchum,  27  Conn.  170;  infra, 
§140. 

^  Manufacturers'  &  Mechanics'  Savings  Loan  Co.  v.  Odd  Fellows  Hall  Asso- 
ciation, 48  Penn.  St.  446. 

compensation  for  official  services  only  Bloomington,  &  Mississippi  Railway 
where  it  is  fixed  beforehand  by  the  Co.,  G8  111.  570,  where  it  is  held  that 
by-lav7s,  or  by  a  recorded  resolution  they  are  not  entitled  to  compensation 
of  the  board.  Lafayette,  Blooming-  for  services  in  contracting  for  con- 
ton,  &  Mississippi  Railway  Co.  v.  structiou.  And  see  also  Holder  v. 
Cheeney,  87  111.  446.  But  for  services  Same,  71  111.  106,  where  it  is  held  that 
outside  the  line  of  their  ordinary  offi-  a  director  appointed  treasurer  without 
cial  duty,  e.  g.,  soliciting  subscriptions'  provision  made  at  the  time  for  com- 
&c.,  they  are  entitled  to  compensation,  pensation  is  entitled  to  none. 
lb.     But  see   Cheeney  v.   Lafayette, 

[*571] 


§  138. J         UECOUDS   Oi-   TUE   PUOCEEDINGS   OK   DIUECTORS.  (Jl'J 

SECTION    IV. 
Records  of  the  Proceedings  of  Directors. 


1.  English  statutes   require   minutes  of 

proceedings  of  directors,  and  make 
tliem  evidence. 

2.  Presumption  tliat  minutes  contain  all 

that  passed. 


(J.  Tresuniption  from  nun  production  of 
minutes  tliat  company  rutiQeJ  acts 
of  directors. 


§  138.  1.  The  English  general  statutes  require  the  directors  to 
keep  minutes  of  all  appointments,  contracts,  orders,  and  proceed- 
ings of  the  directors  and  committees,  in  books  kept  fur  that  jnn*- 
pose,  and  these,  duly  made,  are  receivable  as  evidence,  without 
further  authentication.  But  this  is  held  not  to  exclude  other  evi- 
dence of  such  transactions.^ 

*  2.  As  against  the  comj)any  and  the  members  j)resent  at  a  par- 
ticular meeting,  the  minutes  of  the  directors  will  be  hehl  ]>riinti 
facie  correct.^  And  where  the  proceedings  of  the  minutes  of  the 
meeting  arc  imperfect,  it  will  be  presumed  that  everything  was 
brought  before  the  meeting  which  it  was  reiiuisite  to  bring  before 
them  to  have  the  action  of  the  company  valid.^ 

3.  The  legality  of  the  proceedings  of  directors  in  jiurchasing 
shares  of  the  company  for  the  company,  which  i-e(piireil  the  sanc- 
tion of  a  general  meeting,  will  be  presumed  either  from  lapse  of 
time  and  no  dissent  on  the  part  of  the  shareholders,  or  from  the 
l)roceedings  of  the  general  meeting  at  which  the  matter  would 
naturally  have  been  acted  u]>on  not  being  forthcoming,  as  it  was 
the  duty  of  the  company  to  kee))  regidar  minutes  (»f  .such  meet- 
ing.'^ And  it  was  also  here  lield  that  the  company,  by  tran.sfer- 
ring  such  shares,  thereby  coiilirmed  the  validity  of  the  transfer  to 
them."'     So  also  by  i)aying  an  annuity,  the  price  of  such  shares.'^ 

1  Inglis  V.  Great  Xortliern  Railway  Co.,  1  Macq.  Ap.  Ca.s.  \V2\  s.  c.  1'5 
Eng.  L.  &  Eq.  55.  Lord  St.  Leonards  said,  in  the  House  of  Lord.s:  "But 
independently  of  the  evidence  furnisheil  by  the  lKK)k.><,  the  duo  appointment 
was  proved  by  a  witness,  and  his  evidence  wa.s  adMiis.><il)lo  evitlenco,  for  the 
act  confers  a  privilege,  but  does  not  exclude  other  evidence  of  the  fact.' 
Miles  I'.  Bough,  :]  Q.  B.  815. 

2  Ex  parte  Stark,  10  Jur.  x.  s.  790. 

8  Ex  parte  Lane,  1  De  G.  J.  &  S.  504;  s.  c.  10  Jur.  n.  ».  •-*.'>. 

[•o72] 


G20 


RAILWAY   DIRECTORS. 


[part    VI. 


SECTION  V. 


Autliority  of  Directors  to  borroiv  Money,  ^c. 


1.  Authority  of  directors,  express  or  im- 

plied, to  bind  company. 

2.  Power  to  bind  company  through  agent 

of  their  appointment. 

3.  Contracts  in  excess  of  authority  under 

seal  of  company  prima  facie  bind- 
ing. 

4.  Strangers  must  take  notice  of  general 

want  of  authority  in  directors,  but 
not  of  mere  informalities. 


Corporation  cannot  subscribe  for  stock 
of  otiier  companies. 

Corporation   may   borrow    money    if 

requisite. 
n.  (a)     Or   loan    money   to    aid    in 
auxiliary  work. 

Power  of  directors  to  accept  subscrip- 
tion payable  in  land. 


§  139.  1.  Joint-stock  companies,  under  many  of  the  English 
statutes/  are  held  bound  by  contracts  made  by  a  competent 
board  of  directors,  though  not  under  seal,  and  not  made  in 
strict  compliance  with  the  acts.^  But  those  who  seek  to  bind 
*  such  companies,  on  contracts  made  with  the  directors,  must 
show  their  authority  to  bind  the  company,  either  by  the  terms 
of  the  deed  of  settlement,  or  that  the  body  of  the  shareliolders 
authorized  these  persons  to  act  on  their  behalf.  A  ratification  by 
a  competent  board  of  directors  will  bind  the  company .^ 

2.  The  general  rule  upon  this  subject,  in  regard  to  goods  and 
money  which  is  obtained  by  agents  ostensibly  clothed  with  com- 
petent authority,  and  which  actually  goes  to  the  use  of  the  com- 
pany, seems  to  be  that  the  company  is  holden.  Thus  where  a 
joint-stock  manufacturing  company,  having  a  board  of  directors, 
with  authority  to  appoint  officers  and  delegate  their  authority, 
purchased  goods  through  the  general  manager  of  the  company, 
or  his  deputy,  or  the  secretary,  all  of  whom  Avere  duly  appointed, 
and  when  the  goods  were  delivered  on  the  company's  premises, 

1  Statute  7  &  8  Vict.  c.  110. 

2  Ridley  v.  Plymouth  Baking  Co  ,  2  Exch.  711.  Where  one  has  the  actual 
charge  and  management  of  the  busine.s.s  of  a  corporation,  with  the  knowledge 
of  tlie  directors,  the  company  will  be  bound  by  his  contracts,  made  on  their 
behalf,  within  the  apparent  .scope  of  the  business  thus  intrusted  to  him. 
Goodwin  v.  Union  Screw  Co  ,  34  N.  H.  878;  Chicago,  Burlington,  &  Quincy 
Railroad  Co.  v.  Coleman,  18  111.  297.  In  this  case  it  is  held,  that  the  admis- 
sion of  the  president  of  the  company  in  regard  to  the  authority  and  acts  of  a 
sub-agent  will  bind  the  company. 

[*573J 


§  139.]  AUTUORITY   TO    UORROW    MONKY,    ETC.  021 

and  used  for  their  jmrposcs,  they  were  lieUl  liable,  on  the  rtouikI 
that  the  manaj^cr  had  authority  to  f^ive  such  orders,  in  the  uhsfiiec 
of  any  express  provision  to  the  contrary.  And  it  was  held  that, 
as  to  the  other,  the  directors  must  be  taken  to  have  known  that 
the  goods  had  been  furnished  and  u.sed,  and  that,  therefore,  the 
company  was  liable  to  pay  for  thera.*^ 

3.  A  contract  under  the  seal  of  the  company  is  prima  facie 
binding  upon  them.  In  such  case  it  is  not  enough,  in  order  to 
defeat  a  recovery  upon  the  contract,  to  show  an  excess  of  autlxjr- 
ity  on  the  part  of  the  directors  who  made  the  contract.*  The 
*  defence  must  establish  such  an  excess  of  authoritv  as  was 
known  to  the  other  party,  or  such  as  nuiy  be  presumed  to  have 
been  so  known,  and  thus  virtually  establish  mala  fides,  both  on 
the  part  of  the  directors  and  the  other  contracting  party.* 

8  Smith  r.  Hull  Glass  Co.,  11  C.  B.  897.  And  where  the  general  agent  <.f 
a  manufacturing  company  directed  the  clerk  to  issue  a  promissorj'  note  in  tlio 
name  of  the  company,  and  it  was  shown  that  the  note  was  in  the  form  custom- 
arily used  and  always  recognized  by  the  company  in  like  coses,  it  was  held  to 
be  sufficient  proof  of  the  execution  of  the  note  by  the  company  to  go  to  tlie 
jury,  and  to  \varrant  them  in  finding  that  tlie  company  had  adopted,  by  u-sage, 
the  signature  of  its  agent  as  its  own,  and  intended  to  be  bound  by  it.  Mead 
V.  Keeler,  24  Barb.  20.  Such  company  may  borrow  money  for  its  legitimate 
business,  and  bind  itself  by  a  written  obligation  for  its  repayment,  lb.  See 
also  Curtis  I".  Leavitt,  15  N.  Y.  9. 

*  Royal  British  Bank  v.  Turquaud,  5  Ellis  &  B.  218;  s.  c.  :V2  Eng.  L.  &  Kq. 
273.  Lord  Campbicll  said,  in  giving  judgment  :  "  A  good  plea  must  allege 
facts  to  establish  illegality,  as  was  done  in  Collins  r.  Blantern,  2  Wils.  .317, 
and  Paxton  r.  Popham,  9  East,  408.  A  mere  excess  of  authority  by  tl>e 
directors,  we  think  of  itself  would  not  amount  to  a  defence.  The  bond  beinp 
under  the  seal  of  the  company,  the  gist  of  the  defence  must  be  illegality.  If 
the  directors  had  exceeded  their  authority  to  the  prejudice  of  the  sharehtild- 
ers,  by  executing  the  bond,  and  this  had  been  known  t<j  the  obligees,  illegality, 
we  think,  would  have  been  shown.  The  obligors  in  executing,  and  the  obiigeea 
in  accepting  the  bond,  might  bo  considered  as  combining  together  to  injure 
the  shareholders.  The  two  parties  would  have  been  n  pari  delicto,  and  tlie 
action  could  not  have  been  maintained,  hi  such  circumstances /w^ior  est  con- 
ditio dofcndentis.  But  without  the  scienter  and  without  prejudice  to  the  xhare- 
holders,  or  any  others  whatsoever,  illegality  is  not  estabii.shed  against  the 
obligees.  If  no  illegality  is  siiown  as  against  the  party  witii  whom  the  com- 
pany contract  under  the  seal  of  the  company,  excess  of  authority  is  a  matter 
only  between  the  directors  and  the  shareholders."  And  again,  "The  pLiin- 
tiffs  have  bona  fide  advanced  their  money  for  the  use  of  the  comp.iny.  giving 
credit  to  the  representations  of  the  directors  that  they  had  authority  to  exe- 
cute the  bond,  and  the  money  which  they  advanced,  and  which  they  now  seek 

[•574] 


G'22  RAILWAY   DIRECTORS.  [PART   VI. 

4.  The  case  of  Royal  British  Bank  v.  Turquand,  just  referred 
to,  was  afiirmcd  in  the  Exchequer  Chamber,'^  in  which  a  some- 
what important  distinction  seems  to  be  made  between  a  general 
want  of  authority  in  the  directors  to  do  the  act  in  question  in 
any  case,  and  a  mere  want  of  authority  in  the  particular  instance, 
for  want  of  the  requisite  formalities  on  the  part  of  the  company, 
they  being  bound  in  the  latter  and  not  in  the  former  case.  Jervis, 
C.  J.,  in  giving  judgment,  said  :  "  Parties  dealing  with  tliese  joint- 
stock  companies,  through  the  directors,  are  bound  to  read  the 
deed  or  statute  limiting  the  directors'  authority,  but  they  are  not 
bound  to  do  more.  The  plaintiffs  therefore,  assuming  them  to 
have  read  this  deed,  would  have  found,  *  not  a  prohibition  to 
borrow,  but  a  permission  to  borrow,  on  certain  things  being  done. 
They  have,  in  my  opinion,  a  right  to  infer,  that  the  company 
which  put  forward  their  directors  to  issue  a  bond  of  this  sort, 
have  had  such  a  meeting,  and  such  a  resolution  passed,  as  are 
requisite  to  authorize  the  directors  in  so  doing."  This  rule  has 
been  extended  to  negotiable  paper  drawn  in  the  name  of  the  com- 
pany by  the  directors,  beyond  the  scope  of  their  powers  to  bind 
the  company,^  even  while  in  the  hands  of  a  bona  fide  holder. 

5.  It  was  held  that  a  joint-stock  business  company  had  no 
power  to  take  stock  in  a  savings  bank,  and  that  a  loan  effected  by 
that  means  could  only  be  enforced  to  the  extent  of  the  money 
actually  received  by  the  company  over  and  above  the  amount  re- 
tained upon  the  subscription.*^ 

to  recover,  must  be  taken  to  have  been  applied  in  the  business  of  the  company 
and  for  the  benefit  of  the  shareholders."  "The  case  of  Hilly.  Manchester 
Waterworks  Co.,  2  B.  &  Ad.  866,  is  an  instance  of  such  a  bond  being  upheld, 
the  pleas  not  disclosing  any  fraud  or  injury  done  to  the  sliareholders  of  the 
company,  and  the  case  of  Horton  v.  Westminster  Improvement  Commission- 
ers, 7  Exch.  911;  s.  c.  14  Eng.  L.  &  Eq.  378,  was  decided  on  the  same  prin- 
ciple." Agar  V.  Athenfeum  Life  Assurance  Co.,  3  C.  B.  n.  s.  725;  s.  c.  30 
Law  T.  302,  is  decided  on  the  authority  of  Royal  British  Bank  v.  Turquand, 
infra,  note  5.  A  release  purporting  to  be  under  the  corporate  seal,  and  signed 
by  the  president  of  the  company,  and  exhibited  by  the  company  in  court,  as 
its  act,  would  operate  as  an  estoppel  on  the  company,  in  any  suit  between  the 
party  as  to  whom  the  release  was  given  and  the  company.  Scaggs  r.  Balti- 
more &  Washington  Railroad  Co.,  10  Md.  2G8. 

6  6  Ellis  &  B.  327;  s.  c.  36  Eng.  L.  &  Eq.  142. 

6  Infra,  §  239,  pi.  5. 

'  Mutual  Savings  Bank  v.  Meriden  Agency  Co.,  24  Conn.  159.  See  also 
infra,  §211,  note  3. 

[*575] 


§  109.]  AUTIIOIUTY    TO    liOniiOW    MONEY,    ETC.  023 

G.  There  seems  to  be  no  question  made  of  the  general  right  of 
corporations,  both  puljlic  and  private,  to  burrow  money,  su  far 
as  their  legal  functions  may  rccjuirc  it.  («)  The  rule  has  been 
extended  to  insurance  companies.^  But  it  was  once  doulitcd 
■whether  this  could  be  done  except  under  the  rorjtorate  seal.-' 
Ijut  the  cases  now  show  that  no  such  tiling  is  r<-<|uisitc."^ 

7.  It  is  made  a  question  in  one  case,^^  liow  far  tht-  jiroposition 
by  one  to  subscribe  to  the  stock  of  the  company,  payable  in  cer- 
tain specified  lands  at  a  given  price,  may  be  lawfully  accepted  bv 
the  directors  of  the  company,  and  whether  the  same  should  not  be 
made  by  a  special  agent  appointed  for  that  purpose.  *  But  it  was 
held  clearly  that  the  separate  consent  of  several  members  of  tiie 
board,  not  shown  to  constitute  a  quorum,  did  not  create  an  ac- 
ceptance binding  upon  the  company. 

8  Nelson  v.  Eaton,  26  N.  Y.  410. 

8  Wilmot  I'.  Coventry,  1  Y.  &  Col.  Ex.  518. 

'<>  Marshall  v.  Queen  borough,  1  Sim.  &  S.  520.  See  cases  l>efore  roforrod 
to  in  this  section.  And  it  was  held  that  the  directors  of  a  company  incor- 
porated for  making  a  cemetery  could  not  raise  money,  l»y  indorsing  and  ac- 
cepting bills  for  the  purposes  of  the  undertaking.  Steele  r.  IlarmiT,  11  M.  & 
W.  Sol.  The  same  principle  is  recognized  in  the  earlier  ca-ses.  Bnmjjiiton  v. 
Manchester  Waterworks,  3  B.  &  Aid.  1 ;  Clarke  i'.  Imperial  Gas-Liglit  Co., 
4  B.  &  Ad.  315.  And  where  the  by-laws  of  the  coriK)r;ition  provide  that  in 
the  management  of  its  affairs  the  directors  shall  have  all  the  powers  of  the 
corporation  not  inconsistent  with  the  by-laws  or  the  laws  of  the  common- 
wealth, and  there  is  no  prohibition  in  the  by-laws  of  the  directors  Ijorrowing 
money,  issuing  bonds,  or  conveying  the  lands  of  the  company,  the  directors 
may  exercise  such  powers.  Ilendee  r.  Pinkerton,  14  Allen,  3si.  And  where 
municipalities  are  empowered  to  subscribe  to  the  stock  of  a  railway  and  jxiy 
the  subscription  in  its  own  bonds,  the  company  may  negotiate  the  bonds  with 
its  own  guaranty  in  order  to  raise  money  for  its  convenient  uses.  lUilroad 
Co.  r.  Howard,  7  ^^'al.  392. 

^*  Junction  Railroad  Co.  v.  Reeve,  1.')  Ind.  230. 

(a)  So  also  to  loan  money  to  aid  in  Cheever  r.  Gilbert  Elevated  Railway 
a  work  auxiliary  to  its  main  business.     Co.,  43  N.  Y.  Suixjrior  Ct.  476. 

[•oTO.] 


624 


EAILWAY   DIRECTORS. 


[part   VI. 


SECTION  VI. 


Directors  hound  to  serve  the  Interest  of  Company. 


1.  General  duty  of  such  officers  defined. 

Trust  relation. 

2,  3.   Contracts  for  secret  service  and  in- 

fluence with  directors.  Legality. 
4,  5.  Directors  cannot  buy  of  themselves 
for  the  company.  But  company 
may  ratify, 
n.  (b)  Nor  can  they  acquire  for  them- 
selves property  which  they  should 
acquire  for  company. 

6.  They  may  purchase  shares  of  one  an- 

other to  promote  harmony  in  the 
board. 

7.  May  loan  money  to  company,  though 

forbidden  to  participate  in  profits  of 
company's  contracts. 

8.  Director  de  facto  treated  as  director 

so  far  as  afiects  claims. 

9.  Hotel  company  may  lease   premises 

to  others. 
10.  Director    cannot    recover  for   work 
done  for  company. 


11.  Contract  of  projector  with   directors 

not  binding  on  company,  if  not  con- 
ditional on  formation  of  the  com- 
pany. 

12.  Director  forbidden  to  act  where  in- 

terested, may  still  vote  as  share- 
holder. 

13.  Court  will  not  act  on  petition  against 

directors  brought  by  member  who 
is  a  mere  puppet  for  otliers. 

14.  Directors  cannot  charge  to  company 

costs  of  libel  suit  brought  for  defa- 
mation of  themselves. 

15.  Directors    responsible    for    wrongful 

acts  of  each  other,  if  known  at  tlie 
time. 

16.  Eight  of  courts  to  appoint  receivers 

and  take  the  management  of  corpo- 
rations. 

17.  Directors  personally  responsible  for 

money  expended  in  raising  the 
price  of  shares. 


§  140.  1.  The  general  duty  of  railway  directors  is  stated,  some- 
what in  detail,  in  another  part  of  this  work.^  It  is  an  important 
and  public  trust,  and  whether  undertaken  for  compensation  or 
gratuitously,  imposes  a  duty  of  faithfulness,  diligence,  and  truth- 
fulness in  the  discharge  of  its  functions,  in  proportion  to  its 
difficulty  and  responsibility,  (a) 

1  Infra,  §211,  note  6. 
(a)  Thus  they  may  not  manage  the    Union  Pacific  Railroad  Co.,  103  U.  S. 


affairs  of  the  corporation  for  their 
private  advantage,  nor  have  any  pecu- 
niary interest  in  contracts  made  with 
the  corporation  through  their  in- 
fluence. Ryan  v.  Leavenworth,  At- 
chison, &  Northwestern  Railway  Co., 
21  Kan.  365.  Nor  can  they  deal  in  any 
way  in  their  own  behalf  in  respect  to 
matters  involving  the  trust.  Duncomb 
V.  New  York,  Housatonic,  &  Northern 
Railroad  Co.,  84  N.  Y.  190;  Wardell  v. 

[*576] 


651.  And  so  a  purchase  by  a  director 
of  bonds  of  the  company  below  par  is 
at  peril  of  avoidance  on  application  to 
the  courts.  lb.  But  a  contract  for  a 
sale  of  a  part  of  its  property  to  one  of 
the  directors  is  not  void  at  law,  it  is 
merely  voidable  at  suit  of  any  one  in- 
terested in  the  property  of  the  road. 
Little  Rock  &  Fort  Smith  Railway 
Co.  V.  Page,  35  Ark.  304. 


§  140.]  MUST   SERVE   INTEREST   OF   COMPANY.  C2o 

2.  An  important  ca.sc,  involvinir  incidentally  the  duty  of  rail- 
way directors,  aro.se  in  the  Superior  Court  of  the  city  of  New 
York.-  The  plaintiff  claimed  pay  for  labor  and  .services,  in  pro- 
curing? for  the  defendants  the  contract  for  the  construction  and 
equipment  of  the  Ohio  and  Mississii)pi  Railway,  from  Cincinnati 
to  St.  Louis.  The  mode  of  his  pcrlorming  this  service  seems 
to  have  been  throuf^h  one  Clement,  who  knew  nothing?  of  defend- 
ants, but  who  acted  upDU  the  jilaintiff's  recommendation  of  them, 
and,  for  the  aprreed  compensation  of  810,000,  seci'ctly  influiMiccd 
the  directors  of  the  railway,  by  personal  solicitation,  to  give  the 
contract  to  the  defendants. 

3.  Mr.  Justice  Hoffmann,  in  j^ivinir  judtrment,  makes  some 
suggestions  upon  the  general  subject,  well  worthy  of  our  notice. 
*"  Undoubtedly  this  was  the  employment  of  Clement,  for  a  bribe, 
to  use  personal  influence  with  the  directors,  to  secure  a  lucrative 
contract  for  one  of  whose  capacity  and  responsibility  he  was 
entirely  ignorant.  He  was  to  use  this  secretly,  and  with  individ- 
uals. The  directors  of  this  great  railroad  scheme,  if  they  stood 
not  in  the  capacity  of  public  officers,  owing  a  duty  to  the  state, 
yet  were  trustees  of  the  stockholder.';  of  the  road,  and  owed  the 
best  efforts  of  industry,  integrity,  and  economy  to  tln-m.  No  ouc 
can  deny,  that  a  stii)ulation  for  any  j)ersonal  advantage  or  jM-ulit, 
which  might  attend  and  intiucncc  the  discharge  of  their  trust  to 
the  stockholders,  would  be  a  violation  of  duty  ;  and  no  engage- 
ment given  to  them,  or  contracts  made  with  them,  for  that  object, 
could  bear  the  scrutiny  of  the  law.  If,  again,  one  of  their  ollieers, 
if  Mitchell,  for  example,  emjjowered  to  negotiate  and  finally  to 
settle  the  contract  with  Seymour,  had  received  an  ol)ligation  for 
the  payment  of  a  sum  of  money  for  his  services,  it  could  never 
have  been  enforced."  The  learned  justice  cited  and  commented 
upon  the  following  cases  in  supjjort  of  the  principle  which  would 
avoid  such  agreements  :  ^  *  and  continued  :  "  I  am  led  to  the  con- 

^  Davison  v.  Seymour,  1  Cosw.  SS;  Iletlmoii<l  r.  Dickcrson.  1  Stock.  507. 

8  Gray  v.  IIoolc,  4  Comst.  440;  Wal.lo  r.  Martin,  4  R.  &  C.  319;  s.  c 
2  Car.  &  P.  1;  Ilaniugton  r.  Du  Cliastel,  2  Swanst.  l.'!1;  Hopkins  r.  Prcscott. 
4  C.  B.  578;  Money  r.  Macleod,  2  Sim.  &  S.  301;  Maislial!  r.  naUimore  & 
Ohio  Railroad  Co.,  IG  How.  .314,  32.);  Fuller  r.  Dame.  IS  Pick.  172.  Ix>rd 
Eldo.v  says,  in  regard  to  one  acting  as  the  agent  of  others,  anil  securing  .i 
large  sum  to  himself,  without  the  knowledge  of  those  on  who.'^o  l)eh.ilf  he  acted, 
"  It  is  impossible  for  this  court  to  sanction  such  a  proceeding."  Fawcett  r. 
Whiteliouse,  1  Russ.  &  M.  132.  Shelford  iu  Shelf.  Railw.  pp.  lO-l,  lOi,  thus 
VOL.  I.  — 40  [•577,  *o78] 


G26  RAILWAY   DIRECTORS.  [PART   VI. 

elusion,  that  it  would  be  impossible  to  allow  Clement  to  sustain 
an  action  upon  the  agreement  *  with  him.  There  was  in  it  most 
of  the  elements  of  a  vicious  contract,  which  have  avoided  similar 
obligations  in  the  *  leading  cases  cited.  There  was  secrecy,  indi- 
vidual application,  a  concealed  promise  of  compensation,  and 
utter  ignorance  and  *  recklessness  as  to  the  competency  of  the 
party  whose  cause  he  was  promoting,  and  whose  reward  be  was  to 
receive.  There  is  the  difference,  that  these  directors  were  ser- 
vants of  an  organization  inferior  to  that  of  a  state,  yet  acting  in  a 
very  spacious  sphere,  and  representing  an  extensive  body  of  con- 
stituents. The  difference  between  their  position  and  that  of  legis- 
lators, upon  a  question  like  this,  appears  to  me  but  shadowy. 
"  If,  then,  the  claim  of  Clement  would  be  promptly  rejected,  does 
the  present  plaintiff  stand  in  a  better  position  ?  His  original 
employment  might  have  been  consistent  with  an  open,  avowed 
agency,  an  intent  or  instructions  to  make  it  known,  and  thus  be 

lays  down  the  rule  in  regard  to  the  duty  oi  the  directors:  "  The  employment 
of  a  director  is  of  a  mixed  nature,  partaking  of  the  nature  of  a  public  office. 
...  If  some  directors  are  guilty  of  a  gross  non-attendance,  and  leave  the 
management  entirely  to  others,  they  may  be  guilty,  by  these  means,  of  the 
breaches  of  trust  which  are  committed  by  others.  By  accepting  a  trust  of  this 
sort,  persons  are  obliged  to  execute  it  with  fidelity  and  reasonable  diligence, 
and  it  is  no  excuse  that  they  had  no  beuefit  from  it,  and  that  it  was  merely 
honorary.  .  .  .  Supine  and  gross  negligences  of  duty  •will  amount  to  a  breach 
of  trust."  See  Charitable  Corporation  v.  Sutton,  2  Atk.  400.  The  same 
principle,  in  regard  to  the  effect  of  the  service  being  gratuitous,  is  found  in 
the  celebi-ated  case  of  Coggs  v.  Bernard,  1  Salk.  26.  In  ^Marshall  v.  Baltimore 
&  Ohio  Railroad  Co.,  supra,  which  was  an  action  for  a  large  sum  for  secret 
service  in  getting  a  bill  through  the  legislature  giving  the  company  the  right 
of  way.  Mr.  Justice  Grier  made  some  very  pertinent  remarks,  in  regard 
to  the  duty  of  courts  of  justice,  in  enforcing  against  railway  companies  con- 
tracts for  obtaining  legislative  grants,  by  extraordinary  efforts  and  influences, 
secretly  exerci.'^ed.  And  see  Wood  v.  McCann,  6  Dana,  3G(3;  Hunt  v.  Test, 
8  Ala.  713;  Harris  v.  Roof,  10  Barb.  489;  Rose  v.  Truax,  21  Barb.  3G1,  in 
which  similar  opinions  are  expressed.  The  enormity  of  such  transactions,  in 
some  quarters,  if  universal  and  concurrent  general  opinion  may  be  regarded 
as  authentic,  is  truly  appalling.  There  is  an  instructive  exposition  of  the 
subject,  in  an  important  case  in  Xew  York,  In  re  Lowber  r.  New  York;  In  re 
Flagg  V.  Lowber.  The  gist  of  these  cross-actions  is,  that  by  collusion  with 
certain  of  the  city  authorities,  Lowber  was  to  receive  8200,000  for  a  piece  of 
land  for  a  market  on  the  East  River.  The  arrangement  was  made  by  con- 
senting to  a  judgment  of  court  on  the  report  of  a  referee.  Comptroller  Flagg, 
on  hearing  of  tliis  judgment,  took  measures  for  obtaining  a  stay  of  proceed- 
ings. See  also  Semmes  v.  Columbus,  19  Ga.  471.  Supra,  §  137. 
[-579-*581] 


§  140.]  MUST    SERVE   INTKKEST   OK   CnMrANY.  »jJ7 

free  fi-oin  all  objections.  Ijiit  we  are  left  in  ignorance  of  what 
the  terms  of  sucli  original  agreement  were,  —  how  far  thev 
extended.  All  is  indefinite,  except  merely  an  (Mnployment.  He 
engages  Clement,  and  here  again,  that  employment  may  have 
been  perfectly  free  from  censure  on  the  plaintiff's  part.  IJut  upon 
the  best  consideration  we  can  give,  we  cannot  separate  the  act  of 
Clement  from  the  acts  of  the  plaintiff.  There  is  a  legal  identity 
for  the  purposes  of  this  action.  The  jdaintiff  must  be  held  to 
have  employed  Clement  to  do  what  he  did  do,  or  to  have  been 
bound  to  superintend  his  }»roceedings,  and  free  them  fr(jm  what 
was  illegal.  It  is  impossible  to  permit  him  to  prtifit  l»y  the  mis- 
deeds of  his  own  agents,  however  ignorant  and  exempt  from  them 
himself.  His  ignorance,  when  knowledge  was  a  duty,  becomes 
equivalent  to  a  fault." 

4.  The  directors  of  a  corporation,  created  for  business  purposes 
and  profit,  are  trustees  for  the  shareholders,  and  owe  them  all  the 
duties  and  responsibilities  which  attach  to  other  trustees  and 
agents.  If,  therefore,  a  director  enter  into  a  contract  for  the 
company,  he  can  derive  no  personal  lienefit  from  it.'*  (/<)  Accord- 
ingly, *  where  the  company  had  fuinishcd  the  director  with  a 
lai"ge  sum  of  money,  to  enable  him  to  ])ureliase  the  concession  of 
another  company  in  regard  to  their  liiu',  and  \\v  jun'chased  it,  as 
it  turned  out,  from  himself,  being  the  concealrd  owner  (»f  it,  it  was 
held  that  the  transaction  conhl  not  stand  ;  but  the  i-omjiany  must 
adopt  or  repudiate  it  altogether.  IJiit  the  company  having  sold 
the  concession  during  the  pendency  of  a  suit  im|ieaching  the 
transaction,  it  was  held  they  could  have  no  relief,  either  as  to  tlie 
application  of  the  money  or  otherwise.'' 

5.  And  where  the  directors  of  an  insurance  eom]tany  had  pur- 
chased the  stock  of  one  of  the  board,  and  allowcil  him  to  retire 
from  his  [)Osition  l)oth  as  director  and  shareholder,  and  had  useil 
the  funds  of  the  company  to  compensate  him  for  his  sjiares,  it 

*  Great  Luxembourj;^  r»:ulway  Co.  v.  Ma.^x'iay,  25  Reav.  r»SG:  s.  c.  4  .Tur. 
N.  s.  839;  s.  r.  Kimber  v.  Haiber,  L'O  W.  H.  CO-'.  Ami  tlie  fact  that  the  com- 
pany sufTor  no  detriment  will  make  no  ditToivnce.  Flint  \  !'•'"  M  nt.Miito 
Kaihoad  Co.  v.  Dewey,  14  Mich.  477. 

^  See  also  Sturges  r.  Knapp,  ol  Vt.  1. 

(/>)  Nor  can  he  acquire  for  himself  and  which  is  uvir--;\ry  for  its  pnr- 
property,  e.g.,  right  of  way,  which  it  po.scs.  IMako  r.  Iluffalo  Creek  Kail- 
is  his  duty  to  acquire  for  the  company,     road  Co..  5'i  N.  Y.  48.). 

foP2] 


628  RAILWAY   DIRECTORS.  [PART   YI. 

was  held  that  this  was  such  an  irregularity  as  could  not  be  con- 
firmed and  leiralizcd  by  a  meeting  of  the  shareholders  even,  un- 
less the  deed  of  settlement  under  which  the  company  was  formed 
provided  for  its  being  so  ratified,  or  for  its  transaction  by  the 
directors.*'  And  it  was  held,  tliat  in  such  case  a  bill  in  equity, 
filed  by  certain  shareholders  on  behalf  of  themselves  and  the 
others  against  the  company  and  the  directors,  praying  that  the 
directors  might  be  decreed  to  restore  to  the  company  the  funds 
so  diverted  by  them,  was  maintainable.^ 

6.  It  seems  to  be  regarded  as  a  valid  contract  between  the 
different  directors  of  a  corporation,  by  which  one  portion  pur- 
chase the  interest  of  another  portion,  to  enable  them  to  retire 
with  a  view  to  heal  dissensions  in  the  board  ;  and  the  fact  that 
the  money  is  paid  by  the  company's  bankers  and  refunded  by  a 
resale  of  the  shares  thus  purchased,  will  not  render  the  contract 
invalid." 

7.  But  where  by  a  constitutional  provision  of  a  corporation  the 
director's  office  was  vacated,  if  he  participated  in  the  profits  of 
any  contract  with  the  company,  Init  the  company  were  empowered 
to  borrow  money  on  the  director's  own  individual  responsibility, 
or  on  other  securities,  it  was  held  that  a  director,  lending  his 
own  money  to  the  company  at  a  large  interest,  was  not  thereby 
disqualified  from  being  a  director.^  (c) 

*  8.  A  director  who  acts  as  such  by  sitting  at  the  board  and 
executing  works  for  the  company,  will  be  treated  as  such  so  far 
as  his  claim  against  the  company  is  concerned,  although  he  was 
not  properly  appointed.^ 

9.  It  is  not  ultra  vires  for  a  hotel  company  to  lease  part  of 
their  premises  to  a  business  company,  with  the  condition  that  the 

^  Hodgkinson  v.  National  Live  Stock  Insurance  Co.,  5  Jur.  n.  s.  478,  9G9; 
s.  C.  26  Beav.  473. 

7  Haddon  v.  Avers,  1  Ellis  &  E.  118;  s.  c  5  Jur.  n.  s.  408. 

«  Bluck  i\  Mullalue,  5  Jur.  n.  s.  1018;  s.  c.  27  Beav.  398.  A  director  can- 
not derive  any  benefit,  directly  or  indirectly,  from  contracts  made  by  him 
with  contractors  for  construction  of  the  road.  European  and  Xorth  American 
Railroad  Co.  v.  Poor,  59  Me.  277. 

9  In  re  South  Essex  Gas  Light  &  Coke  Co.,  20  Law  J.  Ch.  43. 

(c)  A  director  may  receive  prop-  ity.     Duncomb  v.  Xew  York,  Housa- 

erty  of  the  corporation   as  collateral  tonic,  &  Northern   Railroad   Co.,  88 

security  for  an  honest  debt  or  liabil-  N.  Y.  1. 
[*583] 


I 


I 


§  140.]  MUST   RERVK   INTKIiEST   OF   COMTANY,  G29 

first  company  shall  have  the  exclusive  privilege  of  supplying  the 
portions  so  leased  with  all  provisions,  wines,  and  liijuors.''' 

10.  Under  the  English  statute  "  it  is  an  answer  to  a  claim  for 
compensation  for  works  of  the  company  executed  hy  the  plaintiff, 
that  he  was  at  the  time  of  entering  into  the  contract  interested 
therein,  and  it  makes  no  difference  that  the  consideration  wa.s 
executed,  and  the  company  had  had  the  benefit  of  the  contract.'- 

11.  A  contract  made  between  the  projector  of  a  corj)Oration 
and  the  directors  of  the  company  thereafter  created,  which  is  not 
in  terms  made  conditional  on  the  completion  of  the  comj)any,  is 
not  under  the  English  statute  binding  ujion  the  company  when 
fully  established.^"^ 

12.  A  rule  of  the  constitution  of  the  company,  whereby  a  direc- 
tor is  prohiliitcd  frt)m  voting  upon  any  matter  in  which  he  is  in- 
terested, will  not  preclude  him  from  voting  as  a  shareholder  at  a 
general  meeting.^*  But  the  resolution  of  a  board  of  directors,  of 
which  the  creditor  is  a  member,  acknowledging  the  existence  of  a 
debt  barred  by  the  statute  of  limitations,  will  not  operate  to  re- 
move *  such  bar,  if  indeed  any  resolution  of  the  board  will  bind 
the  company  to  that  extent. ^^ 

13.  Although  it  is  the  unquestionable  right  of  every  member  of 
the  company  to  restrain  the  unlawful  acts  of  the  direetoi-s,  still 
when  it  appears  that  the  plaintiff  is  a  mere  pupjjct   in  the  hands 

J''  Simpson  v.  Westminster  Palace  Hotel  Co.,  C  Jur.  n.  s.  985;  8.  c.  2  De 
G.  F.  &  J.  141;  8.  c.  8  II.  L.  Cas.  712.  But  where  the  promoters  of  a  rail- 
way contracted  with  a  land-owner,  a  peer  of  parliament,  to  pay  hira  £20,IK)<). 
for  his  countenance  and  support  in  obtaining  their  act,  indej^endent  of  and 
above  all  ordinary  compensation  for  land  and  other  damages,  another  separate 
contract  defining  the  hind  to  be  taken  and  the  amount  to  l>e  paid  therefor,  the 
directors  of  the  company  after  its  organization  having  ratified  the  first  con- 
tract, it  was  held  that  the  original  agreement  and  the  ratification  by  tlie  diivc- 
tors  were  ultra  vires  of  the  company,  and  could  not  be  enforced  against  it. 
Shrewsbury  v.  North  Staffordshire  Railway  Co.,  Law  Rep.  1  Eq.  31>;j.  ."nco 
also  Joint-Stock  Discount  Co.  v.  Brown,  12  Jur.  n.  s.  SOU;  s.  c.  Law  Rep. 
3  Eq.  1:39. 

"  Statute  7  &  8  Vict.  c.  110,  §  29. 

12  Stears  v.  South  Essex  Gas  Light  &  Coke  Co.,  9  C.  B.  n.  s.  ISO;  9.  c. 
7  Jur.  N.  s.  447.     See  also  Ex  parte  Walker,  8  Do  G.  M.  &  G.  G07. 

13  Gunn  V.  London  &  Lancashire  Insurance  Co.,  12  C.  B.  .n.  8.  COl. 

1*  Lead  ]\Iining  Co.  v.  Merryweather,  10  Jur.  x.  s.  1231;  s.  c.  2  II.  \  M. 
25L 

IS  Ex  parte  Gold  Mining  Co.,  10  Law  T.  n.  s.  229. 

[•o84] 


G30  RAILWAY   DIRECTORS.  [PART  VI. 

of  others  not  members  of  the  company,  wlio  indemnify  him 
against  the  costs  of  the  suit,  the  court  will  not  interfere  by  inter- 
locutory injunction.^*" 

14.  Where  the  directors,  in  good  faith,  for  the  benefit  of  the 
company,  commenced  a  criminal  prosecution  for  liljcl  against 
the  members  of  a  committee  of  inspection  and  investigation  of 
the  affairs  of  the  company  and  the  conduct  of  the  directors,  ap- 
pointed by  dissatisfied  shareholders,  it  is  not  competent  for  them 
to  charge  the  costs  of  such  prosecution  against  the  company,  or 
pay  them  out  of  the  company  funds ;  and  a  court  of  equity,  at  the 
suit  of  any  dissentient  shareholder,  Avill  enjoin  the  directors  from 
doing  so  in  future,  notwithstanding  their  conduct  had  been  sanc- 
tioned, as  to  a  portion  of  the  payments  then  made,  at  the  half- 
yearly  meeting  of  the  shareholders.  But  as  the  court  has  a 
discretion  in  granting  relief  by  injunction  in  such  cases,  it  will 
not,  in  that  mode,  compel  the  directors  to  refund  the  money  so 
paid  by  them  and  sanctioned  by  the  majority  of  the  shareholders 
before  proceedings  taken  to  enjoin  thcm.^'^ 

15.  One  railway  director  will  be  held  responsible  for  any  unlaw- 
ful act  of  the  others  in  misapplying  the  funds  of  the  company,  if 
known  to  him  and  he  took  no  steps  to  hinder  it.  In  such  cases  it 
is  his  duty  to  take  effective  steps  against  all  such  acts  of  his  co- 
directors  ;  and  if  need  be  to  resort  to  an  injunction  in  chancery,  and 
if  he  omit  to  do  so  he  will  be  regarded  as  assenting  to  such  acts.^^ 

16.  The  courts  liave  no  visitatorial  powers  over  corporations 
except  what  is  given  by  statute,  and  can  only  withdraw  the  con- 
trol of  the  same  from  the  directors  and  shareholders  and  put  its 
management  into  the  hands  of  receivers,  when  it  appears  tliat  the 
management  of  the  company  is  conducted  with  a  fraudulent  dis- 
regard of  the  interests  of  the  shareholders  or  the  public.^^ 

16  Filder  v.  London,  Brighton,  &  South  Coast  Railway  Co.,  1  II.  &  M.  489. 

"  Pickering  v.  Stephenson,  20  W.  R.  654,  where  a  very  interesting  opinion 
was  delivered  by  Wickexs,  V.  C  ;  s   c.  Law  Rep.  14  Eq.  322. 

18  Joint-Stock  Discount  Co.  v.  Brown,  17  W.  R.  1037;  s.  c.  Law  Rep.  8 
Eq.  381.  It  is  no  excuse  for  the  director  who  signed  improper  checks  on 
behalf  of  the  company,  that  he  did  it  as  mere  routine.  lb. ;  Ottoman  Co.  v. 
Farley,  17  W.  R.  701.  But  in  the  very  late  case,  Spering  v.  Smith,  2.0  Leg. 
Int.  24.5,  it  was  held  that  the  directors  of  a  joint-stock  company  were  not 
liable  to  make  good  losses  caused  by  their  mismanagement  merely.  It  must 
appear  that  they  were  guilty  of  fraud,  wilful  misconduct,  or  breach  of  trust. 

"  Belmont  v.  Erie  Railway  Co.,  52  Barb.  G37.  And  it  was  here  held,  that  the 
[*584] 


§  lil-] 


DISMISSAL   OF   EMPLOY^.  —  DAMAGES. 


r,:n 


17.  D4rcctors  will  be  licltl  persuiuiliv  rtrs|M)u.siblc  for  moiif.'y  <.\- 
pcndcd  by  tlicin  in  "rijrgiiii,^  the  market,"  as  it  is  called,  that  is 
purchasing  shares  above  i^ar  in  order  to  raise  the  credit  of  the 
company.'-''^ 


SECTION   VII. 


Rijht  to  dismiss  Employes. —  Damajes  for  tvron^ful  Dismissal. 


1,2.  Wlietlier  employe,  if  wrongfully 
dismissed,  may  recover  salary  for 
full  term.     English  courts  hold  not. 

3.  Some  American  cases  take  the  same 
view. 


Where  the  contract  provides  for  a  terra 
of  wages,  after  di.smissal,  it  is  to  be 
regarded  as  liquiilatc<l  ihimages. 

Statute  remedy  in  favor  of  laborers  of 
contractors,  extends  to  laborers  of 
sub  contractors. 


§  141.  1.  Where  a  railway  company  dismiss  a  servant,  sui)erin- 
tendent,  or  other  employe,  without  just  cause,  it  seems  to  be  con- 
sidered, in  some  cases,  that  they  arc  prima  facie  liable  for  the 
salary,  for  the  full  term  of  the  employment.^  This  ])roposition 
has  been  often  made  by  judges,  and  seems  to  have  been  ac- 
quiesced in  by  the  profession,  to  a  very  great  extent ;  but  in  an 
English  casc,2  where  the  subject  is  examined  with  great  thorough- 
ness, the  oi)inion  of  the  judges  certainly  seems  to  incline  to  a 
diCt'erent  result.     Patteson,  J.,  said  :  — 

2.  "  I  am  not  aware  that  this  precise  point  has  been  raised  in 
*  any  case.  .  .  .  Mr.  Smith,  2  L.  Cases,  20,  says,  Mhat  a  clerk, 
servant,  or  agent,  wrongfully  dismissed,  has  his  clccfinu  ..f  three 

luiscondiictof  the  directors  would  not  justify  takiiii;  the  contrnl  ol  the  cdinpany 
from  the  stockholders  and  phiciiis:;  it  under  flu  olHcer  of  the  court. 

2°  Land  Credit  Co.  v.  Fennoy,  17  W.  It.  AIL';  s.  c.  Law  Rep.  8  E<i.  7. 

^  Costigan  v.  Moliawk  i<  Hudson  Railway  Co.,  '2  Denio,  OdO. 

^  Goodman  v.  rocock,  15  Q.  H.  57G.  In  this  case  a  clerk,  dismi.ssed  in  the 
middle  of  the  quarter,  brought  an  action  for  the  wrongful  disMii.>isal,  on  the 
special  contract,  and,  in  the  trial  of  the  action,  tho  jury  were  in.structod  th.il 
they  should  not,  in  assessing  damages,  take  into  account  tho  services  renilcre<l 
by  plaintilT  in  the  broken  quarter,  for  which  he  had  received  no  p.iy.  Tho 
plaintiff  then  brought  this  action  for  tho.se  .services,  and  the  c<iurt  hold,  that 
tiiose  services  should  have  been  taken  into  account  in  as.se.'s-sing  tlama?e,s  in 
the  former  action,  and  that  no  recovery  could  be  had  in  this  action,  on  account 
of  the  former  recovery. 

[•585] 


632  RAILWAY    DIRECTORS.  [PART    VI. 

remedies.  1.  He  may  bring  a  special  action  for  his  master's 
breach  of  contract,  in  dismissing  him.  2.  He  may  wait  till  the 
termination  of  the  period  for  which  he  was  hired,  and  may  then 
perhaps  sue  for  his  whole  wages,  in  indebitatus  assumpsit,  relying 
on  the  doctrine  of  constructive  service.  Gandell  v.  Pontigny,  4 
Camp.  375.  3.  He  may  treat  the  contract  as  rescinded,  and  may 
immediately  sue  upon  a  quantum  meruit,  for  the  work  he  actually 
performed.  Planche  v.  Colburn,  8  Bing.  14.'  I  think  Mr.  Smith 
has  very  properly  expressed  himself  with  hesitation,  as  to  the 
second  of  the  above  propositions ;  it  seems  to  me  a  doubtful 
point."  Lord  Campbell,  C.  J.,  and  Coleridge,  J.,  both  agree  that 
the  party,  dismissed  without  cause,  may  bring  itidebitatus  as- 
sumpsit, for  the  service  actually  performed,  or  may  sue  for  the 
breach  of  the  contract  in  dismissing  him,  but  cannot  do  both. 
And  Erle,  J.,  lays  down  the  rule  very  distinctly,  and,  as  it  seems 
to  us,  upon  the  only  sound  and  sensible  basis.  "  The  plaintiff 
had  the  option,  either  to  treat  the  contract  as  rescinded,  and  to 
sue  for  his  actual  service,  or  to  sue  on  the  contract  for  the  wrong- 
ful dismissal.  ...  As  to  the  other  option,  referred  to  by  Mr. 
Smith,  I  think  that  the  servant  cannot  wait  till  the  expiration  of 
the  period  for  which  he  was  hired,  and  then  sue  for  his  whole 
wages,  on  the  ground  of  a  constructive  service,  after  dismissal.  .  I 
think  the  true  measure  of  damages  is  the  loss  sustained  at  the 
time  of  dismissal.  The  servant  after  dismissal  may  and  ought 
to  make  the  best  of  his  time,  and  he  may  have  an  opportunity  of 
turning  it  to  advantage.  I  should  not  say  anything  that  might 
seem  to  doubt  Mr.  Smith's  very  learned  note,  if  my  opinion  on 
this  point  were  not  fortified  by  the  authority  of  the  Court  of 
Exchequer  Chamber,  in  Eldcrton  v.  Emmens,  6  Com.  B.  160." 

3.  The  cases  in  this  country  ^  have  sometimes  taken  a  similar 
view  of  the  rule  of  damages, 'in  such  cases,  and  the  rule  must,  we 
think,  ultimately  prevail  everywhere.* 

3  Algeo  V.  Algeo,  10  S.  &  R.  235;  Donaldson  v.  Fuller,  3  S.  &  R.  505; 
Perkins  v.  Hart,  11  Wheat.  237. 

*  Spear  &  Carlton  v.  Newell,  decided  by  the  Supreme  Court  of  Vermont, 
but  not  reported.  In  this  case  the  plaintiff  sued  for  the  price  of  rags  and 
other  materials  furnished,  to  supply  a  paper-mill  under  special  contract.  The 
materials  were,  at  one  time,  unfit  for  use,  on  account  of  latent  defects,  for 
which  by  the  contract  the  plaintiffs  were  liable.  The  defendant  claimed  that 
the  rule  of  damages  should  be  the  rent  of  the  mill  and  the  expense  of  supply- 
ing workmen  until  good  materials  were  furnished.     But  the  court  held,  that 

[*585] 


§  141.]  DISMISSAL   OF    EMPLOYt's. —  DAMAGES.  033 

*  4.  Where  the  contract  spcciries  the  time  for  wliieh  the  party 
employed  shall  be  entitled  to  wages  after  notice  of  dismissal,  that 
is  to  be  regarded  as  stipulated  damages  for  the  breach  of  the  con- 
tract.^ But  even  this  cannot  be  recovered  under  the  indefntutim 
count  for  work  and  labor.*^ 

5.  Where  the  statute  provides,  that  the  laborers  of  contractors 
uj)on  a  railway  may  give  notice  to  the  company  of  their  wages  re- 
maining unpaid,  in  certain  contingencies,  and  thus  charge  the 
company,  the  provision  was  held  to  extend  to  laborers  and  work- 
men of  sub-contractors.' 

it  was  the  duty  of  the  defendant  to  make  the  best  of  the  case,  on  his  part, 
and  that  he  could  recover  only  such  damages  as  interv'ened,  before  he  had 
opportunity  to  supply  himself  with  proper  materials. 

6  Hartley  v.  Ilarman,  11  A.  &  E.  708. 

"  Fewings  v.  Tisdal,  1  Exch.  2f)5. 

T  Kent  ('.  New  York  Central  Railroad  Co.,  12  N.  Y.  C28;  Peters  r.  St. 
Louis  &  Iron  Mountain  Railroad  Co.,  21  Mo.  58G.  Where  the  statute  in  such 
case  makes  the  company  liable  for  thirty  days'  labor  of  the  workmen,  it  is  not 
indispensable  that  the  labor  should  have  been  performed  in  thirty  consecutive 
days,  to  entitle  them  to  compensation  against  the  company.  Under  the  new 
code  of  Missouri  such  claims  may  be  sued  in  the  name  of  an  assignee.  lb.; 
Infra,  §  211,  note  12.  In  New  York,  where  the  general  railway  act  gives  labor- 
ers on  railways  a  remedy  against  any  sum  due  the  contractor,  under  certain 
conditions,  it  has  been  decided  that  the  provision  extends  only  to  those  who 
perform  the  labor  personally,  and  will  not  embrace  such  as  procure  others  to 
perform  labor  on  the  works,  or  who  furnish  team-work,  whether  with  or  with- 
out their  own  personal  service.  Balch  v.  New  York  &  Oswego  Midland  lluil- 
road  Co.,  40  N.  Y.  521. 

[*58G] 


634 


ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 


♦CHAPTER    XXII. 


ARRANGEMENTS   BETWEEN   DIFFERENT   COMPANIES. 


SECTION    I. 


Leases,  and  similar  Contracts,  require  the  Assent  of  Legislature. 


1.  In  England,  by  statute  company  may  | 

contract  with   another  for  right  to  I 
pass  over  its  road.     Contract  bind- 
ing. 

2.  Cannot  transfer  as  by  lease  duty  of  one 

company  to  another,  without  legis- 
lative grant. 

3.  Leasing  company  still  liable  to  public. 

Liability  of  lessee. 

4.  Equity  will  enjoin  company  from  leas- 

ing, without  legislative  consent. 

5.  Such  contracts,  made  under  legislative 

permission,  are  to   be  carried   into 
effect. 

6.  Majority  of  company  may  obtain  en- 

larged powers,  with  new  funds. 

7.  So   the  majority  may  defend   against 

proceedings  in  legislature. 

8.  Legislative   sanction   will    not  render 

valid  contracts  ultra  vires. 


9.  Company  cannot   assume    duties    of 
ferry,  without  legislative  grant, 

10.  Grant  to  company  of  implied  right  to 

establish  a  ferry  to  connect  its  ter- 
minus with  depot  on  opposite  side 
of  river,  does  not  extend  responsi- 
bility of  company  as  a  carrier  by 
rail  to  the  ferry. 

11.  Such  ferry  by  gratuitous  carriage  of 

passengers  may  infringe  franchise 
of  another  ferry. 

12.  Grant  to   company  of  a  ferry  in  ex- 

press terms  will  not  authorize  car- 
riage of  anything  except  its  passen- 
gers and  freight. 

13.  Legislative  confirmation  of  a  railway 

and  its  location  will  not  affect  past 
defaults. 


§  142.  1.  The  English  statute  ^  gives  special  permission  to  one 
company  to  contract  with  other  companies  for  the  right  of  pass- 
age over  their  track.  And  this  has  been  construed  to  give  the 
right  to  contract  for  tlie  privileges  ordinarily  attaching  to  such 
passage,  of  stopping  at  the  stations,  and  taking  up  and  putting 
down  passengers  and  freight.^  The  parties  will  be  bound  by  the 
terms  of  the  contract,  notwithstanding  the  ninety-second  section 

1  Statute  8  &  9  Vict,  c  20,  §  87. 

2  Simpson  v.  Denison,  10  Hare,  51 ;  s.  c.  16  Jur.  828;  2  Shelf.  Railw.  Ben- 
net's  ed.  694;  13  Eng.  L.  &  Eq.  359. 

[*587] 


I 


§  142.]       LKASES,    ETC.,    REQUIRE    CONSENT   OF   LEGISLATll.i..  *'.'.]') 

of  the  act,  which  gives  all  eoin|»:iiii('S  and  persons  the  ri:/ht  to  uim* 
railways  upon  the  payment  of  the  tolls  deniandahlc-*  («) 

2.  ]kit  an  agreement  hetween  railway  companies,  witlujiit  the 
authority  of  the  legislature,  transferring  the  powers  of  one  com- 
pany to  the  other,  is  against  good  jiolicy,  and  a  court  of  eipiity 
*  will  not  lend  its  aid  to  carry  such  contract  into  ellect.*  (/>)  But 
it  has  been  held,  that  a  contract,  by  which  one  railway  gives 
another  the  right  of  jiassagc,  upon  the  guaranty  of  a  certain  |»er 
cent  profit  upon  their  stock  and  all  other  investments,  is  a  ])ay- 
mcnt  of  tolls  within  the  statute.^     It  seems  to  be  considered,  by 

*  Great  Northern  Railway  Co.  v.  Eastern  Counties  Railway  Co.,  9  Hare, 
30G;  2  Shelf.  Raihv.  Beiuiefs  ed.  096;  12  Eng.  L.  &  E(i.  221. 

■*  Great  Northern  Railway  Co.  v.  Eastern  Counties  Railway  Co.,  9  Hare, 
30G;  12  Eng.  L.  &  Eq.  241;  South  Yorkshire  Railway  Co.  v.  Great  Northern 
Railway  Co.,  19  Eng.  L.  &  Eq.  513;  Johnson  r.  Shrewsbury  &  Birmingham 
Railway  Co.,  3  De  G.  M.  &  G.  914;  s.  c.  id.  5S4;  London,  Brighton,  &  South 
Coast  Railway  Co.  v.  London  &  Southwestern  Railway  Co.,  4  De  G.  &  J. 
302;  8.  c.  5  Jur.  x.  s.  801,  where  the  subject  is  extensively  examined  by 
the  Lord  Chancellor,  and  the  cases  coniinenti-d  on.  In  Ohio  &  .Mississippi 
Railroad  Co.  v.  Indianapolis  &  Cincinnati  Railroad  Co.,  5  Am.  Law  Reg.  N.  8. 
733,  a  case  before  the  Superior  Court  of  Cincinnati,  the  question  of  the  right 
of  a  railway,  chartered  by  one  state,  to  contract  with  the  railways  of  other 
states  for  permanent  privileges  in  running  cars  on  such  railways,  is  extou- 
sively  considered  and  denied  by  Storkh,  J.  The  case  illustrates  verj-  forcibly 
the  demand  which  obviously  exists  for  making  all  lines  of  railway  extending 
into  different  states  national  agencies  rather  than  n)ere  .state  institutions. 
For  military  and  postal  purposes  railways  are  far  more  national  than  banks, 
and  as  means  of  intercommunication  ecjually  so. 

^  South  Yorkshire  Railway  &  River  Dun  Co.  r.  Great  Northern  Railway 
Co.,  9  E.\ch.  55;  22  Eng.  L.  &  Eq.  531;  s.  c.  in  Exchequer  Chamlwr.  9  Exch. 
012;  s.  c.  25  Eng.  L.  &.  Ivi-    IvJ.     One  company  having  nuule  a  iK'neficial 

(d)  A  lease  from  one  company  to  Co.,  80  N.  Y.   107;  Archer  r.   Terre 

another,  both  companies  having  i>ower  Haute   &   Iiidiana|Kilis   Railroad   Co., 

to  that  end,  is  not  vitiated  by  a  cove-  102   HI.    493.       A    lea.se  so   made   is 

nant  for  their  amalgamation,  proper  u//ra  r/re.*  and  void.     Thomas  r.  llail- 

legislation  being  had,   though   l)ased  road   Co.,    101    U.    S.   71.      But  8oe 

on   that  covenant.     Central    Railroad  Tittsburg,    Cincinnati,  &    St.     I>5ui« 

&  Banking  Co.  r.  Macon,  4!  Ga.  00.").  Railway  Co.  r.  Columbus.  Chicaco.  & 

{b)  In    general,   therefore,  a  com-  Indiana  Central   Railway  Co..  8  Kiss, 

pany  may  not  lea.se  its  road,  without  4.'»0.     It  may  bo  otherwisp  however. 

legislative   permission.     Woodruff   r.  by   statute,    as    in    Illinois.     Illinois 

Erie  Railway  Co.,  25  Ilnn,  240:  Troy  Midland   Railway  Co.   '•     ri- ■  i*.  84 

&    Boston     Railroad    Co.    r.    Boston,  111.  420. 
Hoosac  Tunnel,  &  Western    Railway 

[•588] 


636  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 

the  English  courts,  that  one  railway  leasing  its  entire  use  to 
anotlier  company  does  not  come  within  this  section  of  the  general 
statute,  and  as  the  public  thereby  lose  the  security  of  the  first 
company,  for  care  and  diligence,  in  the  discharge  of  its  public 
duties,  the  contract,  unless  made  in  pursuance  of  an  act  of  the 
legislature,  or  ratified  by  suck  act,  is  illegal,  as  against  public 
policy,*^  (<?)  At  all  events,  a  court  of  equity  may  properly  decline 
to  lend  its  aid  in  enforcing  a  specific  performance  of  such 
contract.' 

3.  But  even  where  such  contracts  have  been  made,  by  permis- 
sion of  the  legislature,  it  has  been  held,  in  this  country,  that  the 
company  leasing  itself  does  not  thereby  escape  all  responsibility 
*  to  the  public ;  but  that  the  public  generally  may  still  look  to 
the  original  company,  as  to  all  its  obligations  and  duties,  which 
grow  out  of  its  relations  to  the  public,  and  are  created  by  charter 
and  the  general  laws  of  the  state,  and  are  independent  of  contract 
or  privity  between  the  party  injured  and  the  railway.^  (d)     But 

contract  with  another  company  in  regard  to  traffic,  may,  with  a  lease  of  itself, 
transfer  the  benefit  of  this  contract.  London  &  Southwestern  Railway  Co.  v. 
Southeastern  Railway  Co.,  8  Exch.  581;  s.  c.  20  Eng.  L.  &  Eq.  417. 

^  Johnson  v.  Shrewsbury  &  Birmingham  Railway  Co.,  3  De  G.  M.  &  G. 
914;  s.  c.  19  Eng.  L.  &  Eq.  584;  Troy  &  Rutland  Railroad  Co.  v.  Kerr,  17 
Barb.  581.  This  doctrine  is  reaffirmed  in  the  House  of  Lords  in  Shrews- 
bury &  Birmingliam  Railway  Co.  v.  Northwestern  Railway  Co.,  G  H.  L.  Cas. 
113. 

'  South  Yorkshire  Railway  &  River  Dun  Co.  v.  Great  Xorthern  Railway 
Co.,  10  Eng.  L.  &  Eq.  513;  Johnson  v.  Shrewsbury  &  Birmingham  Railway 
Co.,  3  De  G.  M.  &  G.  914;  s.  c.  Shrewsbury  &  Birmingham  Railway  Co.  v. 
London  &  Northwestern  &  Shropshire  Union  Railway  Co.,  21  Eng.  L.  &  Eq. 
319;  8.  c.  1  Eng.  L.  &  Eq.  122;  3  De  G.  M.  &  G.  115.  But  see  cases  supra, 
note  5 ;  infra,  §  146. 

8  Nelson  v.  Vermont  &  Canada  Railroad  Co.,  20  Vt.  717.  But  it  is,  per- 
haps, worthy  of  consideration,  in  regard  to  this  case,  that  the  effect  of  legislative 
consent  to  the  lease  is  not  made  a  point  in  this  case.  Sawyer  v.  Rutland  & 
Burlington  Railroad  Co.,  27  Vt.  370.  And  in  Parker  v.  Rensselaer  &  Sara- 
toga Railroad  Co.,  16  Barb.  31.5,  where  the  defendants  were  running  on  the 
Saratoga  &  Schenectady  Railway  by  virtue  of  a  contract,  and  the  plaintiff's 
cow  was  killed  through  defect  of  cattle-guards,  which  it  was  the  duty  of  that 
company  to  maintain,  it  was  held  that  the  defendant   was  not   liable,  the 

(c)  But  see  Midland  Railway  Co.  (d)  Abbott  i-.  Johnstown,  Glovers- 

V.  Great  Western  Railway  Co.,  Law  ville,  &  Kingsboro   Railroad   Co.,  80 

Rep.  8  Ch.  841.  N.  Y.  27.     But  whether  the  lessor  or 
[*589] 


§  142.]       LEASES,    ETC.,    REQUIUR    CONSENT   OP   LEGISLATUKK.  ^^,:^^ 

tlic  party  in  possession  of  a  railway,  wlicthcr  as  Icrboc  or  trustee, 
under  a  mortgage,  is  primarily  liaijlo  lor  all  injuries  and  de- 
faults.^ (e)  But  there  seems  no  good  reason  to  excuse  the  corn- 
neglect  being  attributable  to  that  company.  Perhaps  the  only  question  in 
regard  to  the  .soundness  of  this  decision  is,  whether  both  comiianies  are  not 
chargeable  with  negligence,  the  one  for  suffering  the  road  to  be  used,  and  the 
other  for  using  it  in  that  condition.  This  is  the  view  taken  of  the  law  in 
Clement  c.  Canfield,  28  Vt.  302;  supra,  §  130;  Ohio  &  Mississippi  Railroad 
Co.  V.  Dunbar,  20  III.  023. 

9  Barter  r.  Wheeler,  49  N.  II.  9,  and  cases  cited.  liut  in  the  New  York 
&  Maryland  Line  Railroad  Co.  v.  Winans,  17  How.  30,  it  is  decided,  that 
where  a  railway  is  chartered  by  one  state,  and  all  its  stock  owned  and  the 
road  operated  by  a  corporation  erected  and  existing  in  another  state,  the  first 
corporation  is  nevertheless  liable  to  the  patentee  of  an  improvement  in  rail- 
way cars  for  the  use  of  his  patent,  cars  of  that  construction  having  been  pro- 
cured and  used  on  the  road  by  the  corporation  owning  the  stock  of  such 
company.  Campdf.ll,  J.,  .said,  "  Tiie  corporation  cannot  ab.solve  itself  from 
-the  performance  of  its  obligations,  without  the  consent  of  the  legislature." 


the  lessee  will  be  liable,  there  is  a 
distinction  between  cases  where  the 
injury  results  from  negligence,  &c.,  in 
the  operation  of  tiie  road,  or  from 
negligence,  &c.,  in  the  construction, 
as,  e.  g.,  a  failure  to  construct  cattle- 
guards  according  to  statute.  St. 
Loui.*!,  Wichita,  &  Western  Railway 
Co.  V.  Curl,  28  Kan.  022.  Tiius  it  is 
held  that  the  lessee  alone  is  liable  to 
passengers  for  injuries  the  result  of 
wrongful  acts  of  agents  or  servants. 
Mahoney  i'.  Atlantic  &  St.  Lawrence 
Railroad  Co.,  03  Me.  68.  And  liable 
where  its  lease  binds  it  to  keep  fences 
in  repair,  for  injuries  to  travellers  on 
the  highway  through  want  of  repair. 
Ditcliett  V.  Spuyten  Duyvil  &  Port 
Morris  Railroad  Co.,  07  N.  Y.  425. 
And  liable  also  for  injuries  the  result 
of  want  of  repair  of  track.  Wasmor 
r.  Delaware,  Lackawanna,  &  Western 
Railroad  Co.,  80  N.  Y.  212.  But 
otherwise,  it  seems,  where  the  lessee  i's 
operating  the  road  in  the  name  of  the 
lessor.  Bower  c.  Burlington  &  South- 
western Railroad  Co.,  42  Iowa,  546. 


And  contra,  generally.  Peoria  &  Rock 
Island  Railroad  Co.  v.  Lane,  83  III. 
448.  And  .see  Cook  v.  Milwaukee  & 
St.  Paul  Railway  Co.,  30  Wis.  45. 
See  also  Ilaff  v.  Minnea[K)li3  &  St. 
Louis  Railway  Co.,  4  McCrary,  022. 
And  see  United  States  v.  Little 
Miami  &  Columbus  &  Zenia  Rail- 
road Co.,  1  Fed.  Rej).  700,  which  holds 
the  lessor  liable  for  matters  prior  to 
the  lease. 

(e)  Abbott  V.  Johnstown,  Glovors- 
ville,  &  Kingsboro  Railroad  Co.,  80 
N.  Y.  27.  And  see  supra,  note  (rf). 
The  lessee,  although  holding  under  a 
lease  for  whieh  there  is  no  statutory 
authority,  is  estopped  to  deny  its  va- 
lidity in  an  action  for  rent.  Woodruff 
V.  Erie  Railway  Co..  03  X.  Y.  009. 
And  this  pstopjiol  bind.H  those  who 
claim  under  the  les.*oe.  lb.  But  • 
lea.se  void  for  want  of  |ower  to  ninko 
it  is  not  validated  by  an  acceptance  of 
rent.  Ogdensburg  &  Lake  Champlain 
Railroail  Co.  r.  Vermont  &  Canada 
Railroad  Co.,  4  Hun,  268. 

[•589] 


G38  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   Yl. 

pany,  assuming  to  act  as  common  carriers,  by  virtue  of  the  lease 
of  another  company's  road,  from  the  ordinary  responsibility  of 
common  carriers  forthe  transportation  across  the  portion  of  the 
route  held  by  lease,  on  the  ground  of  the  responsibility  of  the 
company  owning  and  leasing  the  road,  even  Avhen  the  loss 
occurred  from  tlie  default  *  of  the  latter  com|)any  in  not  perform- 
ing the  stipulations  in  their  lease.^^  Nor  can  the  lessees  of  a  rail- 
way excuse  themselves  from  responsibility  in  such  cases  on  the 
ground  that  their  lease  is  void,  being  taken  without  the  sanction 
of  the  legislature.^*^  And  a  railway  company  is  always  responsi- 
ble for  an  injury  occasioned  by  want  of  proper  care  and  prudence, 
on  the  part  of  its  servants,  in  the  management  of  a  train  which  is 
under  their  exclusive  care,  management,  and  control,  although 
belonging  to  another  company. ^^  But  if  such  injury  is  occasioned 
by  the  negligence  of  another  company,  whose  car,  for  the  purpose 
of  being  loaded  by  the  plaintiff,  has  been  placed  upon  a  side  track 
of  defendants',  which  is  in  constant  use  by  other  roads,  that  other 
company  is  bound  to  use  reasonable  care  to  prevent  a  collision, 
and  if  it  fails  to  do  so,  whereby  tlie  plaintiff  receives  an  injury. 

But  one  company  giving  permission  to  another  to  use  a  part  of  its  track,  does 
not  thereby  become  bound  to  keep  the  track  in  such  repair  as  to  be  safe  for 
use.  Nor  does  such  company  tliereby  assume  any  obligation  towards  the 
passengers  carried  thereon  by  such  other  company.  Murch  v.  Concord  Rail- 
road Co.,  9  Fost.  N.  H.  9;  infra,  §  144.  See  also  Briggs  r.  Ferrell,  12  Ire.  1. 
And  in  Vermont  Central  Railroad  Co.  v.  Baxter,  22  Vt.  365,  the  company 
is  held  liable  for  the  acts  of  the  contractor  in  the  exercise  of  the  right  of  emi- 
nent domain,  in  obtaining  materials  for  constructing  the  road.  And  a  railway 
company  leasing  the  entire  use  of  its  road  to  another  company,  is  still  respon- 
sible for  damages  caused  by  fires  communicated  by  the  engines  of  the  lessees 
while  operating  the  road.  And  it  will  make  no  difference  that  cue  of  the 
buildings  destroyed  by  the  fire  caught  from  another  building  to  which  the 
fire  first  communicated.  Ingersoll  v.  Stockbridge  &  Pittsfield  Railroad  Co., 
8  Allen,  4.38.  But  in  Massachusetts  the  general  statutes  of  the  state  expressly 
provide  tliat  the  corporation  owning  the  road  shall  remain  liable  for  all  dam- 
age done  by  other  parties  operating  the  road.  ]\Iass.  Gen.  Stat.  c.  63,  §  116. 
And  there  seems  to  be  no  ground  to  question,  that  on  general  principles,  as 
•stated  in  the  text,  when  a  railway  and  its  accessories  are  transferred  by  legis- 
lative sanction  to  the  use  of  other  parties,  whether  as  lessees  or  trustees  under 
a  mortgage,  and  such  parties  continue  to  operate  the  road,  they  are  the  party 
primarily  responsible  for  all  loss  and  damage.  Barter  v.  Wheeler,  49  N.  II. 
9,  and  cases  cited. 

1°  McCluer  v.  Manchester  &  Lawrence  Railroad  Co ,  13  Gray,  124. 

11  Fletcher  v.  Boston  &  Maine  Railroad  Co  ,  1  Allen,  9. 

[*590] 


I 


f 


§  142.]      LI:ASIv^,   KTC,   UHyUIUi:   consent  OI*  LEfJISLATUUE.  G3'J 

lie  cannot  recover  of  the  (•(jnipaiiy  whose  cars  caused  the  colli- 
sion.'^  And  if  such  injury  results  Inmi  the  negligence  of  unotlier 
comiiany,  which  has  a  joint  ri^rht  with  the  defendants  to  u»o 
defendants'  track  under  a  lease,  and  which  is  running  trains  over 
defendants'  road  on  its  own  account,  the  defendants  are  not  re- 
sponsible.^^ There  can  be  no  question  of  the  liability  of  the  c«ini- 
])any  leasing  another  line  of  railway,  whether  within  <jrbcyond  th»; 
limits  of  the  state  where  the  first  company  exists,  for  all  acts  and 
omissions  whereby  injury  accrues  to  other  parties,  while  so  ojier- 
ating  such  other  line,  as  lessees,  to  the  same  extent  and  in  the 
same  manner  precisely  as  if  such  injury  had  occurred  ujion  the 
line  of  the  first  company.  And  it  seems  to  b(,'  the  inclination  of 
the  American  courts  to  hold  this  in  regard  even  to  tho.se  compa- 
nies who  have  assumed  to  oiteratc  the  roads  of  other  companies, 
whether  temporarily  or  permanently,  and  whether  by  express 
legislative  sanction  or  not.^^  This  subject  is  very  extensively  di.s- 
cusscd  in  the  case  last  referred  to,  and  the  views  {(resented, 
although  differing  somewhat  from  those  hitherto  adopted  by  the 
English  courts,  certainly  have  very  much  to  commend  them  to 
favorable  consideration.  But  the  original  comi>any  will  be 
responsible  even  for  the  safe  delivery  of  goods  carried  over  the 
line,  where  it  is  leased  to  a  corporation  out  of  the  state." 

*  4.  The  English  courts  have  in  some  instances  even  restrained 
railway  companies  from  carrying  contracts  of  leasing  into  effect, 
without  the  authority  of  the  legislature.''* 

5.  But  such  contracts  being  legal,  and  not  inconsistent  with 
the  policy  of  the  acts  of  parliament,  are  to  have  a  reasonalilo  con- 
struction;  and  where  by  the  creation  of  new  companies  and  other 
facilities,  the  business  is  very  largely  increased,  the  parties  arc 
still  to  abide  by  the  fair  construction  of  the  original  contract,  as 
ai)plicable  to  the  altered  circumstances.'-'' 

G.  There  is  no  doubt  of  the  right  of  a  railway  company  in  Eng- 

^-  Bissell  V.  JMicIiigan  Southern  &  Xortheni  Iiulian.n  Railroad  Co.,  "JJ  N    V 
258. 

'^  Laiigley  v.  Bu.stoii  iSc  M.-iinc  Railroad  Co.,  10  Gray,  10:i. 

"  Winch  V.  Birkenhead,  Lancashire,  &  Cheshire  Junction  Railway  Co..*) 
De  G.  &  S.  502;  s.  c.  13  Enp.  L.  &  K.i-  50(3;  neman  v.  RufTord,  1  Sim.  .\.  s. 
550;  s.  0.  6  Eng.  L.  &  E(].  100. 

1°  East  Lancashire  Railway  Co.  c.  Lancashire  &  Yorkshire  R.iihvny  Co.,  0 
Exch.  591;  s.  c.  25  Eng.  L.  &  Eq.  4G5. 

[•591] 


G40  ARRANCSEMENTS   BETWEEN   COMPANIES.  [PART    VI. 

land  to  apply  to  the  legislature  for  enlarged  powers,  even  for  the 
power  to  become  amalgamated  with  other  companies,  so  as  to 
make  one  consolidated  company.  And  contracts  between  the  dif- 
ferent companies,  for  this  purpose,  have  been  there  recognized 
and  enforced  in  courts  of  equity.^*^  And  while  the  courts  of 
equity  will  enjoin  the  companies  from  applying  their  funds  to 
pay  the  expenses  of  such  parliamentary  proceedings,  they  will  not 
enjoin  them  from  obtaining  additional  powers,  by  legislative  acts, 
when  other  parties  volunteer  to  furnish  the  requisite  funds. ^" 
And  there  seems  to  be  no  question  made  in  the  English  courts, 
of  the  power  of  parliament  to  extend  the  line  of  a  railway,  or  to 
consolidate  existing  companies,  and  that  the  shareholders  are 
bound  by  the  acceptance  of  such  legislative  provisions,  by  a  ma- 
jority of  the  company,  or  by  contracts  to  procure  such  powers  by 
act  of  parliament.^^ 

*  7.  And  it  has  accordingly  been  held,  that  a  public  company,- 
as  the  commissioners  of  sewers  for  a  county,  might  impose  a  rate 
to  defray  the  expense  of  opposing  a  bill,  in  parliament,  which 
threatened  to  affect  the  interests  of  the  company  unfavorably, 
the   same  as  they  might  to  defray  the  expense  of  litigation  in 

'^  Mozley  v.  Alston,  1  Phillips,  790,  where  Lord  Cottf.xham  said:  "  There 
is  scarce  a  railway  in  the  kingdom  that  does  not  come  to  parliament  for  ex- 
tension of  powers." 

1''  Stevens  v.  South  Devon  Eailway  Co.,  9  Hare,  313;  Great  "Western  Rail- 
way Co.  V.  Rushout,  5  De  G.  &  S.  290;  s.  c.  10  Eng.  L.  &  Eq.  72;  infra, 
§252. 

^8  Great  Western  Railway  Co.  v.  Birmingham  &  Oxford  Junction  Railway 
Co.,  5  Railw.  Cas.  241.  The  Lord  Chancellor  says,  that  to  nullify,  in  a  court 
of  equity,  all  contracts  made  on  the  faith  of  obtaining  the  consent  of  the  legis- 
lature to  carry  them  into  effect,  would  be  "to  nullify  many  family  agreements, 
and  all  contracts  by  persons  projecting  new  companies."  Shrewsbury  &  Bir- 
mingham Railway  Co.  v.  London  &  Northwestern  Railway  Co.,  4  De  G.  M.  & 
G.  115;  s.  c.  9  Eng.  L.  &  Eq.  391.  And  it  has  been  held,  in  Columbus,  Pi- 
qua,  &  Indianapolis  Railroad  Co.  v.  Indianapolis  &  Bellefontaine  Railroad  Co., 
5  McLean,  450,  an  important  case  in  a  federal  circuit  court,  that  an  agree- 
ment between  two  railway  companies  to  build  their  roads  from  certain  cities, 
to  meet  at  a  given  place,  and  for  the  regulation  of  charges  for  transportation 
by  both  companies,  and  also  tlie  meeting  of  the  cars,  and  the  through  freight 
cars,  is  a  valid  contract,  and  will  be  enforced  by  injunction  in  equity;  that  to 
fix  the  charge  for  the  transportation  of  passengers  and  freight,  is  the  exercise 
of  the  corporate  franchise  of  each  company,  and  an  agreement  that  both  com- 
panies shall  regulate  this  is  no  abandonment  or  transfer  of  the  franchise  of 
either. 

[*592] 


§  142.]       LEASKS,    KTC,    REQUIRE   COKSENT   OF   LEGISLATURE.  t.H 

court. '^  Lord  Campbell  said  :  "  Our  determination  rcst.s  upon 
the  ground  that  this  oi)i)osition  was  clearly  hma  fide,  and  clcarlv 
prudent." 

8.  In  a  case,  in  Vicc-Chancellor  Wood's  court,*'  the  defend- 
ants entered  into  an  agreement  to  purchase  jdaintiCTs  property, 
there  being  at  the  time  no  legislative  permission  either  to  buy 
or  sell  such  property.  Subserjucntly  such  *  permission  was  ol>- 
taincd,  and  stejjs  taken  by  the  defendants,  under  the  act,  to  carry 
the  contract  into  effect,  Itut  they  ultimately  refused  to  complete 
their  purchase,  on  the  ground  that  the  original  agreement  was 
hot  under  the  seal  of  the  corporation,  nor  signed  by  two  of  -their 
directors.  The  plaintiffs  then  filed  a  bill  for  siJCciPc  performance, 
and  it  was  held  that  the  bill  must  be  dismissed,  on  the  ground  tliat 
the  contract  was  originally  ultra  vires,  not  being  made  dependent 
upon  obtaining  the  consent  of  the  legislature.  It  is  also  said,  that 
the  contract  would  not  be  binding  upon  the  company,  unless  nuide 
under  their  common  seal,  that  being  required  in  the  defendant.s' 
special  act,  and  if  it  were  binding,  that  mandamus  is  the  more 
approi)riatc  remedy. 

*J.  A  railway  company  cannot  ac(iuire  the  franchise,  so  as  to 
be  bound  to  perform  the  duty  of  an  existing  fei'ry,  without  the 

^'^  Regina  v.  Norfolk  Commissioners,  l.">  Q.  B.  510.  The  ground  on  which 
the  decisions  in  England  and  America,  whicli  hold  tlie  franchises  of  corixira- 
tions  not  to  be  assignable  except  by  consent  of  tiie  legislature,  rest,  is  mainly 
the  same  as  that  on  which  it  has  been  held  in  this  country,  that  such  frjin- 
chises  are  beyond  legislative  control,  namely,  that  tiie  charter  constitutes  a 
contract  between  the  sovereignty  and  the  corporation,  on  the  one  part,  for  the 
grant  of  certain  privileges  and  ininumities,  and  on  the  other  for  the  porfonu- 
ance  of  certain  duties  and  functions,  which  are  deemed  an  equivalent  or  con- 
sideration. And  this  feature  is  of  peculiar  force  in  the  case  of  that  class  of 
corporations  on  which  the  legislature  has  conferred  in>ix)rtant  j>ul>lic  ihities 
and  functions,  as  railways  and  banks,  and  some  others.  Tlie  state  confers  on 
a  railway  .some  of  its  most  essential  powers  of  sovereignty,  that  of  eminent 
domain,  and  of  a  virtual  monopoly  in  transportation  of  freight  and  pnKstMj- 
gcrs,  and  in  return  therefor  stipulatis  for  the  faithful  |H?rformaiu'0  of  th&v) 
duties  by  the  corporation.  The  corporation  h.as  no  more  right,  in  equity  and 
justice,  to  transfer  its  obligations  to  other  companies,  or  to  tiatural  |H-rson'*. 
than  the  state  has  to  withdraw  them  altogether.  Either  wouhl  be  regardeil 
as  ail  abuse  of  the  powers  conferred,  or  an  inipairing  of  the  just  obligation  o( 
the  contract  resulting  from  the  gi-ant  and  its  accejUance. 

2"  Leominster  Canal  Co.  v.  Shrewsbury  &  Hereford  Railway  Co..  3  Kay  Sc 
J.  G54 ;  s.  c.  29  Law  T.  312. 

VOL.  I. —41  ['oOS] 


642  ARRANGEMENTS   BETWEEN   COMPANIES.  [PART   VI. 

autliority  of  the  legislature,  given  cither  expressly,  or  by  neces- 
sary implication.^^ 

10.  And  the  grant  to  a  railway  company,  having  its  terminus 
at  the  bank  of  the  river  Hudson,  opposite  the  city  of  Albany,  of 
power  to  connect  its  terminus  upon  one  side  of  the  river  with  a 
depot  upon  the  opposite  bank,  though  it  does,  by  implication, 
give  the  right  to  establish  a  ferry,  does  not  make  it  a  part  of  the 
railway,  so  that  passengers  crossing  the  river  may  be  regarded 
as  carried  under  the  general  railway  franchise. 

11.  And  where  the  grant  of  such  a  ferry  was  restricted,  by 
express  condition,  to  the  transportation  of  freight  and  persons 
carried  by  the  railway,  and  their  servants  and  employes,  it  was 
held  that  the  company,  by  constantly  carrying  other  persons  gra- 
tuitously across  their  ferry,  were  guilty  of  an  infringement  of  the 
franchise  of  a  pre-existing  ferry,  the  same  as  if  such  persons  were 
carried  for  toll.^^ 

12.  And  the  grant  in  express  terms  of  a  ferry  as  a  portion  of 
the  line  of  a  railway,  will  not  empower  the  railway  company  to 
use  the  ferry  for  any  other  purpose  than  the  transportation  of  the 
freight  and  passengers  of  the  company  .^^ 

13.  Legislative  confirmation  of  a  railway  and  of  its  location 
will  not  exonerate  the  company  from  responsibility  for  injuries 
to  public  or  private  rights,  caused  by  the  manner  in  which  it  had 
constructed  or  was  maintaining  part  of  its  road  at  the  time  of 
such  confirmation.^* 

21  Battle,  J.,  in  State  v.  Wilmington  &  Manchester  Railroad  Co.,  Busbee, 
234. 

22  Aikin  v.  Western  Railroad  Co.,  20  N.  Y.  370. 

23  Fitch  V.  New  Haven,  New  London,  &  Stonington  Railroad  Co.,  30  Conn. 
38. 

2*  Salem  v.  Eastern  Railroad  Co.,  98  Mass.  431. 
[*593] 


14o.]  NECESSITY    FOR   SEAL.  C43 

•SECTION    II. 

Necessity  for  Seal  on   Corporate   Contrartg. 


1.  Necessity  for  seal.  English  courts 
holtl  seal  necessary ;  American, 
hold   not. 


3.  What  constitutes  a  seal,  according  to 
modern  use. 


§  143.  1.  The  apparent  hesitation  araonpr  tlie  En^'lish  courts 
and  text-writers^  to  accejit  the  acknowh'dged  rule  of  the  Aujfric;iu 
courts,  that  a  corporation  may  as  well  contract,  by  mere  words, 
Avithout  writing,  or  by  implication  of  law,  or  by  vote,  or  by  writ- 
ing without  seal,  as  a  natural  person ;  in  short,  that  in  t)>o  case 
of  a  contract  by  a  corporation,  a  seal  is  of  no  more  necessity  or 
significance  than  in  the  case  of  a  contract  by  a  natural  person, 
would  seem  to  justify  some  reference  here  to  the  present  state  of 
the  English  law  upon  the  subject.-  (f?) 

^  Ilodgos  Railw.  50,  GO,  01,  and  notes. 

^  It  would  seem  a  very  obvious  view  of  the  quostion,  that  if  a  .seal  is  not, 
as  was  at  one  time  claimed,  indispensable  to  the  authentication  of  a  corporate 
contract,  if,  in  short,  it  can  be  dispensed  with  in  any  case,  it  becomes  merely 
a  matter  of  reason  and  discretion,  or  more  properly  perhaps,  of  int4'iitioii  and 
convenience,  in  order  to  show  the  definite  act  of  the  company;  ami  when  it 
shall  be  required,  or  when-a  contract  shall  be  said  to  be  complete  without  it, 
is  rather  a  question  of  usage  than  an  unbending  rule  of  law.  Beverley  i-  bin- 
coin  Gas  Light  ik  Coke  Co.,  G  A.  &  E.  829,  is  the  case  of  gas-meters  ordered 
for  the  use  of  the  company  by  one  of  the  committee,  taken  on  trial,  and  not 
returned  in  a  reasonable  time,  and  the  company  Ih'UI  liable.  This  is  the 
earliest  case  in  the  English  books  where  the  courts  in  that  countrj'  m.ido  any 
formal  departure  from  the  old  rule,  and  it  was  held,  that  a  cor|><^ration  aggre- 
gate is  liable  in  assvunpsit  for  goods  sold  and  delivered.  rATTKsox,  .1..  re- 
fers to  the  American  authorities  on  the  subject,  and  says:  "  It  is  well  known 
that  the  ancient  rule  of  the  common  law,  that  a  corporation  aggregate  could 
speak  and  act  only  by  its  common  seal,  has  been  almost  entirely  supenwHle*!. 
in  practice,  by  the  courts  of  the  rnit«^d  States."  And  aftt-r  statinij  the 
greater  facilities  here  for  advancement  in  jurisprudence,  the  learned  judge 

(n)  That  a  seal  is  not  necessary,  see  court  of  equity  will  not  declare  it  void 
Whitford  v.  Laidler,  94  N.  Y.  145;  but  rather  compel  p.irties  to  seal  it. 
University  Trustees  v.  iMoody.  02  Ala.  Mis.souri  River.  Fort  Scott,  *:  Call 
389.  Andwhoreacontractotherwi.se  Railroad  Co  r.  Miami  County  Coin- 
valid  is  defective  for  want  of  a  seal,  a    missiouers,  12  Kan.  182. 

[-504] 


644  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 

*  2.  The  English  courts  in  many  comparatively  recent  cases 
seem  to  have  applied  the  general  rule  of  presumption,  by  which 

enters  a  formal  disclaimer  against  "the  riglit  or  tlie  wish  to  innovate  on  the 
law  upon  any  ground  of  inconvenience,  however  strongly  made  out;  .  .  .  but 
when  we  have"  says  the  learned  judge,  "  to  deal  with  a  rule  established  in  a 
very  different  state  of  society,  at  a  time  when  corporations  were  comparatively 
lew  in  number,  and  upon  which  it  was  very  early  found  necessary  to  ingraft 
many  exceptions,  we  think  we  are  justified  in  treating  it  with  some  degree  of 
strictness,  and  are  called  upon  not  to  recede  from  the  principle  of  any  relaxa- 
tion in  it,  which  we  find  to  have  been  established  by  previous  decisions." 
And  this  seems  to  form  the  basis  of  the  subsequent  decisions  of  the  Eng- 
lish courts  on  the  subject.  The  decisions  have  evinced  an  effort  to  preserve 
the  rule,  and  at  the  same  time  to  invent  and  ingraft  such  a  number  of  excep- 
tions upon  it  as  really  to  meet  all  the  inconvenience  or  absurdity  which  could 
fairly  be  objected  against  the  old  rule.  But  in  settling  the  exceptions,  the 
decisions  have  not  always  commended  themselves  as  consistent  either  with 
reason  or  with  each  other ;  thus  affoi-ding  another  striking  illustration  of  the 
folly  of  attempting  to  maintain  an  absurd  rule,  through  the  multiplying  of 
exceptions,  each  one  of  which  is  based  on  a  principle  of  reason,  which,  if  car- 
ried to  its  legitimate  results,  would  subvert  the  rule  itself.  This  was  in  1837, 
in  the  King's  Bench,  and  established  the  exception  to  the  old  rule  of  executed 
contracts  for  goods  sold  and  used  by  the  company  in  the  business  for  which  it 
was  created.  The  next  year  the  same  court  held,  that  a  corporation  might 
also  maintain  an  action  on  an  executory  contract  not  under  seal.  Church  v. 
Imperial  Gas-Light  &  Coke  Co.,  6  A.  &  E.  846.  This  was  on  a  contract  to  take 
gas  of  the  company,  which  the  defendant  below  declined  to  receive.  In  1843  a 
case  arose  in  the  Common  Pleas,  Fishmongers'  Co.  (-•.  Robertson,  5  ]\Ian.  &  G.  131. 
This  was  an  action  on  a  contract  to  jiay  the  plaintiffs  1,000/.  to  withdraw  their 
opposition  to  a  bill  in  parliament,  and  to  promote  its  passage  into  a  law,  the  par- 
ties being  mutually  intei'ested  in  the  same,  and  alleging  performance  of  the  con- 
tract on  the  part  of  the  plaintiffs.  The  subject  was  very  much  considered,  and  an 
elaborate  opinion  delivered  by  Tindal,  C.  J.,  and  it  was  decided,  that  the  con- 
tract having  been  executed  on  the  part  of  the  corporation,  and  the  defendants 
having  received  the  full  consideration,  the  defendants  were  bound,  and  that 
the  contract  was  not  void  as  against  public  policy.  See  also  Arnold  v.  Poole, 
4  Man.  &  G.  860,  to  the  same  effect,  where  it  is  held,  that  no  municipal  cor- 
poration  but  that  of  Loudon  can  appoint  an  attorney  except  under  the  corporate 
seal.  Ludlow  v.  Charlton,  G  M.  &  W.  815.  But  in  184G  the  Court  of  Queen's 
Bench,  in  Sanders  v.  St.  Neot's  Union,  8  Q.  B.  810,  held,  that  if  work  be  done 
for  a  corporation,  and  adopted  for  purposes  connected  with  the  incorporation, 
although  the  contract  is  not  under  seal,  they  are  liable  for  it.  The  case  of 
Copper  Miners  v.  Fox,  16  Q.  B.  229,  held  that  the  plaintiffs  could  not  sue  on 
a  mutual  contract,  because  their  portion  of  it,  not  being  under  seal,  and  be- 
ing for  the  delivery  of  iron  rails,  while  they  were  incorporated  for  dealing 
in  copper,  and  so  not  coming  within  the  proper  business  of  the  company, 
as  a  trading  company,  they  were  not  bound  by  it,  and  by  consequence  the 

[*595] 


§  143. J  NECESSITY    FOR   SKAL.  G45 

tlic!  *  contracts  of  natural  persons  are  to  be  judged,  to  corporations. 
Tlius^  it  was  held,  tluit  where  a  company  has  stood  hy  and  sl-cu 

defendants  were  not.  This  case  admits  the  exception  from  tlie  e»ld  rult;  of  all 
contracts  pertaining  to  the  proper  business  of  tlie  iMCori)oration,  and  then 
attempts  a  distinction  between  deabng  in  iron  and  cop[ierI  —  u  di>tinctiuu 
wliich,  if  it  be  of  any  force,  would  show  that  liie  contract,  being  ullra  vireii, 
would  not  bind  the  company  in  any  form.  The  next  case  in  the  onb-r  of 
time,  Iloinersham  r.  Wolverhampton  Waterworks,  G  Exch.  19;];  s.  c.  0  Kuilw. 
Cas.  790,  supra,  §  113,  is  for  extra  work,  under  a  contract,  which  was  done  in 
express  violation  of  the  provisions  of  the  peneral  contract  in  regard  to  extra 
work,  and  was  not  autliorized,  in  the  manner  required  in  relation  to  contracts, 
by  tlie  company's  charter.  It  seems  to  have  been  correctly  enough  decided, 
on  either  ground,  tiiat  no  recovery  could  be  \md.  tiuj/ni,  §  lUJ,  and  i-iises 
cited.  Lamprell  v.  Billericay  Union,  3  Exch.  283.  But  Cope  r.  Thames 
Haven  Dock  &  Railway  Co.,  3  Exch.  841,  seems  to  be  an  express  decision 
allirming  the  general  nece.ssity  of  the  corporate  seal  to  bind  the  company. 
And  Diggle  c.  London  &  Blaekwall  Railway  Co.,  5  Exch.  142,  is  of  the  same 
character,  being  for  extra  %vork  performed  in  express  violation  of  the  general 
contract;  atid  there  care  some  other  cases  of  this  kind  in  the  English  re[K>rl.s. 
But  the  next  case  in  the  order  of  time,  involving  the  general  question,  is  Fin- 
lay  V.  Bristol  &  Exeter  Railway  Co.,  7  Exch.  4l»9;  s.  c.  9  Eng.  L.  &  Eq.  48;j, 
and  here  it  was  held,  that  although  a  corporation  was  liable  for  use  and  occu- 
pation, on  a  parol  demise,  it  was  liable  for  the  actual  occupation  only,  and 
that  a  continuous  occupation,  for  .several  years,  will  not  render  tlie  corjxjration 
tenants  from  year  to  year.  In  Clark  c.  Cuckfield  Union,  1  Bro.  C.  C.  81; 
s.  c.  11  Eng.  L.  &  Eq.  442,  the  cases  are  all  elaborately  reviewed  by  Wir.nT- 
M.\x,  J.,  and  the  conchusion  arrived  at,  tliat  whenever  the  purp<ise8  for  which 
a  corporation  is  created  render  it  necessary  that  work  should  be  done,  or  goo<ln 
supplied,  to  carry  such  purposes  into  effect,  and  such  work  is  done,  or  such 
goods  supplied,  and  accepted  by  the  corporation,  and  the  whole  consideration 
for  payment  is  executed,  the  corporation  cannot  refuse  to  pay,  on  the  ground 
that  the  contract  was  not  under  seal;  and  the  ca.se  of  Lamprell  v.  Billericay 
Union,  3  Exch.  283,  is  seriously  questioned.  In  I.^we  r.  London  &  North- 
western Railway  Co.,  17  Jur.  375;  .s.  c.  14  Eng.  L.  &  Ecp  IS,  it  is  held,  where 
a  railway  has  taken  po.ssession  of  land,  and  occupied  it,  by  the  jKMiuission 
of  the  owner,  for  the  purposes  of  its  incorporation,  (hat  it  is  liable  to  be 
sued  in  assumpsit,  for  use  and  occupation,  although  it  h;is  not  entered  into  a 
contract  under  the  common  seal.  But  in  the  case  of  Snnirt  r.  West  I  lam 
Union,  10  Exch.  8IJ7;  s.  c.  30  Eng.  L.  &  Eq.  560,  the  (piestion  came  l>efon' 
the  Court  of  Exchequer,  and  the  judges  manifestoil  a  firm  determination  to 
adhere  strictly  to  the  old  rule.  But  in  Australian  Royal  Mail  Co.  r.  Marzetti, 
11  E.Kch.  228,  it  is  said  that  in  small  matters  and  m.ittoi-s  for  which  the  cor- 
poration was  created,  the  corporation  may  contract  without  seal.     The  court 


8  Hill  V.  South  Staffordshire  Railway  Co.,  2  De  G.  J.  &  S.  230;  11  Jur. 
N.  s.  192. 

[•596] 


646  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 

works  performed,  *  it  will  be  held  to  have  assented  to  them,  as 
much  as  if  it  had  been  a  natural  person.     But  the  principle  that 

miglit  have  said,  with  equal  propriety,  that  the  principle  of  the  decision 
extended  to  all  legitimate  business  of  corporations;  for  it  is  impossible  to 
make  any  sensible  distinction,  between  the  proper  business  of  a  corporation, 
as  appears  on  the  face  of  the  charter,  and  tliat  whicli  is  purely  incidental  or 
ancillary  to  the  proper  business  of  the  corporation.  And  this  is  conceded  by 
Lord  Campbell,  in  Copper  Miners  v.  Fox,  supra,  when  refining  upon  the  very 
elemental  distinction  between  a  trade  in  iron  and  a  trade  in  copper.  And  if 
we  allow  corporations  to  bind  themselves,  without  seal,  in  all  the  business 
created  by  their  charter,  and  in  all  that  is  incidental  thereto,  we  shall  have 
few  cases  remaining.  The  only  remaining  case,  directly  on  the  subject,  which 
has  yet  reached  us,  is  that  of  Henderson  v.  Australian  Royal  Mail  Steam 
Navigation  Co.,  5  Ellis  &  B.  409;  s.  c.  32  Eng.  L.  &  Eq.  167,  where  the  de- 
fendants, a  company  incorporated  for  the  purpose  of  carrying  the  mails,  pas- 
sengers, and  cargo,  between  Great  Britain  and  the  Cape  of  Good  Hope 
and  Australia,  and  for  that  purpose  to  construct  and  maintain  steam  and 
other  vessels,  and  to  do  all  such  matters  as  might  be  incidental  to  such  under- 
taking, entered  into  a  contract  with  the  plaintiff  to  go  out  to  Sydney  and 
bring  home  a  sloop  belonging  to  the  company  which  was  unseaworthy,  and  it 
was  held,  that  the  action  might  be  maintained  for  the  service  performed 
under  the  contract,  although  the  contract  was  not  under  seal.  The  opinion  of 
the  judges  at  length  affords  the  safest  commentary  on  the  present  state  of  the 
English  law,  and  presents  an  instructive  contrast  with  the  settled  and  satis- 
factory state  of  the  law  in  this  country. 

In  Renter  v.  Electric  Telegraph  Co.,  6  Ellis  &  B.  346,  in  the  court  of 
Queen's  Bench,  the  defendant  had  made  a  contract,  under  its  corporate  seal, 
•with  the  plaintiif,  to  transmit  all  his  messages,  and  all  he  could  collect,  for  a 
commission  not  exceeding  £500,  nor  less  than  £300  per  annum,  and  while  this 
contract  was  in  existence,  the  chairman  of  the  company  entered  into  a  parol 
agreement  with  the  plaintiif ,  to  pay  him  at  the  increased  rate  of  £50  per  cent, 
in  consideration  of  the  plaintiff's  further  services  in  collecting  public  intelli- 
gence and  sending  it  by  the  company's  telegraph.  These  additional  services 
were  found  to  be  beneficial  to  the  company,  and  this  agreement  was  entered 
on  the  minutes  of  the  company,  and  the  plaintiff  received  £300  for  services  in 
pursuance  of  it.  The  deed  of  settlement  provided,  that  all  contracts,  where 
the  consideration  exceeded  £50,  should  be  signed  by  three  directors.  It  was 
held,  that  the  parol  contract  having  been  acted  on,  and  ratified  by  the  com- 
pany, was  binding.  De  Grave  v.  Monmouth,  4C.  &P.  Ill,  is  a  case  of  rati- 
fication. And  in  Bill  v.  Darenth  Valley  Railway  Co.,  1  H.  &  X.  305;  s.  c.  37 
Eng.  L.  &  Eq.  539,  the  Court  of  Exchequer  held,  that  one  who  had  served 
the  company,  as  secretaiy,  might  recover  compensation  for  his  services,  al- 
though the  remuneration  to  be  paid  him  had  not  been  fixed  at  a  general  meet- 
ing of  the  company,  as  required  by  the  English  statute.  That  was  held  to 
determine  the  duty  of  the  directors  toward  the  company,  and  not  to  limit  the 
liability  of  the  company  to  third  persons,  which  is  the  view  taken  of  the  sub- 

[*597] 


§  143.]  NECESSITY    FOR   SEAL.  t;47 

a  company  *  is  nut  bound  by  a  deed  of  afrrecmcnt  cutcrocl  into  by 
its  directors  or  trustees  for  and  on  behalf  of  the  comi)any,  which 
is  not  *  under  the  seal  of  the  company ,•»  is  still  adhered  to  by  the 
English  and  Irish  courts.  And  to  this  extent  the  rule  may  not 
be  * ol)jcctionable.  But  there  arc  many  Anieri(.'un  cases,  where 
the  construction  in  favor  of  the  responsibility  of  the  company  for 
the  *act  of  the  directors,  even  in  executing  a  contract  under  seal 

ject  here.  Noyes  v.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  110-113; 
supra,  §  13G,  note  5.  But  it  has  been  held,  that  if  a  corporation  contract 
throutjh  an  agent,  who  attaches  a  seal  to  his  execution  of  the  contract  on  its 
behalf,  it  thereby  becomes  the  deed  of  the  company,  although  the  seal  was  not 
its  common  seal;  and  an  action  of  assumpsit  cannot  be  maintained  on  it. 
Porter  v.  Androscoggin  &  Kennebec  Railroad  Co.,  37  Me.  349.  But  it  must 
be  executed  in  the  name  of  the  company.  Sherman  v.  New  York  Central 
Railroad  Co.,  22  Barb.  239.  If,  in  an  action  of  assumpsit,  on  a  contract,  j>ur- 
porting  to  be  executed  by  a  railway  company,  the  company  claim  that  it  was 
executed  under  its  seal,  and  that  therefore  an  action  of  assumpsit  will  not  lie 
on  it,  and  prevail,  on  this  ground,  it  is  estopiied  to  deny,  in  a  subseciuent 
action  of  covenant  on  the  same  contract,  that  the  seal  attached  to  the  contract 
is  the  seal  of  the  company.  Philadelphia,  Wilmington,  &  Baltimore  Railroad 
Co.  ».  Howard,  13  How.  307.  But  the  English  courts  do  not  hold  the  coi-po- 
ration  absolutely  bound  by  contracts  under  its  common  seal,  thus  reducing 
the  question  to  one  of  authority,  in  fact,  to  enter  into  the  contract.  Slirews- 
bury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  Railway  Co., 
G  II.  L.  Cas.  113.  In  London  Docks  Co.  v.  Sinnotl,  8  Ellis  &  B.  347,  the 
Court  of  Queen's  Bench  maintain  the  general  rule  that  "corporations  aggre- 
gate can  only  be  bound  by  contracts  under  the  seal  of  the  corporation."  Lord 
Campbell,  in  giving  judgment,  enumerates  as  exceptions  to  the  rule,  mer- 
cantile contracts,  contracts  with  customers,  and  such  as  do  not  admit  of  being 
executed  under  seal,  e.  g.,  bills  of  exchange.  But  in  .some  English  cases,  it 
seems  to  be  conceded  that  corporations  may  bo  as  much  bound  l>y  the  con- 
tracts of  their  agents  as  natural  persons.  Tiius  in  Wilson  r.  West  llartlefxx)! 
Railway  Co.,  34  Beav.  187;  s.  c.  10  Jur.  x.  s.  10G4,  it  was  held  that  wlien  a 
company,  through  its  directors,  holds  out  to  the  world  that  a  person  is  its 
agent  for  a  particular  purpose,  it  cannot  afterwards  dispute  acts  done  by  him. 
within  the  scope  of  such  agency.  And  accordingly  where  the  general  manager 
of  a  railway  company  having  in  several  instances  entered  into  contracLs  for  the 
sale  of  the  company's  lands,  which  had  been  aduplcil  by  the  company,  entered 
into  a  contract  with  the  plaintiff  for  the  sale  U)  him  of  land,  and  in  pursuance 
of  the  terms  of  the  contract  the  company's  servants  laid  down  a  branch  line 
of  railway,  and  the  plaintiff  removed  machinery  and  otijer  effects  to  the  land, 
and  no  act  was  done  by  the  company  to  lead  the  jilaintiff  to  believe  Uiat  the 
contract  had  been  entered  into  without  authority,  it  w:vs  h.-ld  on  bill  for  .-sjiecific 
performance  that  the  case  fell  within  the  principle  of  the  Ixmdon  &  Birniingh.-un 
Railway  Co.  v.  Winter,  Craig  &  P.,  57.  and  specific  performance  was  decreed. 
*  McArdle  v.  Irish  Iodine  Co.,  15  Ir.  Com.  Law,  110. 

[•.■i08-*601] 


648 


ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 


without  using  the  specific  seal  of  the  corporation,  is  more  favor- 
able, the  directors  for  the  time  being  held  to  have  adopted  the 
seal  used  as  the  corporate  seal,  the  same  as  any  number  of 
natural  persons  may  adopt  the  same  seal.  But  this  latitude  of 
construction  in  regard  to  the  seal  of  a  corporation  is  not  common 
in  this  country,  it  being  generally  held  indispensable,  to  bind  the 
company  by  deed,  that  their  corporate  seal  should  be  used. 

3.  There  has  been  considerable  controversy,  first  and  last,  as 
to  what,  precisely,  amounted  to  a  seal.  The  generally  received 
opinion  upon  the  subject  seems  now  to  be,  that  a  mere  scroll  or 
engraved  likeness  of  the  device  of  a  seal  will  not  answer  the  de- 
mands of  the  law.^  It  must  be  the  result  of  the  use  of  some  ad- 
hesive or  impressible  material.  It  Avas  at  one  time  restricted  to 
the  use  of  wax,  or  some  similar  material.  But  it  seems  now  to 
be  regarded  as  sufficient,  in  the  case  of  a  corporation,  if  the  im- 
pression is  stamped  into  the  substance  of  the  paper  on  which  the 
seal  is  used.^  There  is  a  great  deal  of  curious  learning  in  regard 
to  seals,  much  of  which  will  be  found  in  a  carefully  prepared 
article  upon  the  subject,  lately  published.^ 


*SECTION   III. 


Duty  of  the  respective  Compcmies  to  Passengers  and  Others. 


1.  Company  owning  road  bound  to  keep 

road  safe.   Acts  of  other  companies 
no  excuse. 

2.  Distinction   between   cases   of    negli- 

gence in  operating  and  cases  of  neg- 
ligence in  constructing  tlie  road. 

3.  Passenger  carriers  in   general  bound 

to  make  landing  places  safe. 

4.  Passengers  on  freight  trains  by  favor, 

can  require  only  such  security  as  is 
usual  on  such  trains. 
6.  Owners  of  all  property  bound  to  keep 


it  in  state  not  to  expose  others  to 
injury. 
G.  Rule  extends  to  railway  companies,  as 
to  persons  rightfully  on  their  roads. 

7.  Corporation  keeping  open  public  works 

is  bound  to  keep  them  safe  for  use. 

8.  Corporation   presumptively   responsi- 

ble to  tbe  same  extent  as  natural 
person  in  the  same  situation. 

9.  Railway  company  hauling  cars  of  a 

connecting  road   over  its   line  re- 
sponsible as  a  common  carrier. 


§  144.  1.  A  public  company,  like  a  canal  or  railway,  who  arc 
allowed  to  take  tolls,  owe  a  duty  to  the  public  to  remove  all  ob- 

^  Bates  V.  Boston  &  New  York  Central  Raih-oad  Co.,  10  Allen,  251. 
^  Ileiidee  v.  Pinkertoii,  14  Allen,  oSl. 
7  1  Am.  Law  Rev.  GiO. 
[*602] 


§  144.]       DUTY    OF   COMPANIES   TO    PASSENGERS   AND   GTHEIlS.  G49 

structions  in  llic  caiuil  or  upon  the  railway,  although  not  caused 
by  themselves  or  their  servants,  but  by  those  who  arc  lawfully  in 
the  use  of  the  canal  or  railway,  or  by  mere  strangers.^  (a)  Nor 
can  a  railway  company  excuse  themselves  from  liability  for  injurv 
to  passengers  carried  over  any  part  of  their  road,  by  showinir  that 
the  particular  neglect  was  that  of  a  servant  employed  and  paid 
by  a  connecting  road  as  a  switchman  at  the  juucti(jn  of  two  rail- 
ways.2  (I)) 

*2.  But  it  was  held  that  a  passenger,  who  suffered  an  injury 
in  attcmi)ting  to  get  upon  the  cars  of  one  company  while  using 
the  road  of  another  company,  by  contract  with  such  company, 
through  a  defect  in  the  construction  of  the  road  of  the  latter  com- 
pany, could  not  maintain  an  action  against  them,  there  being  no 
privity  of  contract  between  the  plaintifT  and  such  company  ;  the 
remedy  being  in  such  case  against  the  company  who  were  carry- 
ing the  plaintiff  as  a  passenger.'^  (c) 

^  Parnaby  v.  Lancaster  Canal  Co.,  11  A.  &  E.  2'23;  and  Lancaster  Caual 
Co.  c.  Parnaby,  11  A.  &  K.  230.     See  in/ra,  §  Uo,  pi.  7,  «,  and  note. 

2  McElroy  v.  Nashua  &  Lowell  Railroad  Co.,  4  Cusli.  400,  per  Shaw,  C.  J. 
So  also  where  a  train  of  another  company  and  through  its  own  fault,  ran  into 
a  train  standing  on  its  own  track,  but  over  which  the  other  coini>uny  had  run- 
ning powers,  it  was  held  that  the  company  owning  the  track  was  priiim  facie 
responsible  to  its  own  passengers  thus  injured.  Ayles  v.  Southeastern  liail- 
way  Co.,  Law  Rep.  'i  Exch.  14G.  So  al.so  where  a  company  i^ranUi  the  use  of 
its  track  to  another  company,  whereby  through  the  fault  of  the  latter  company 
its  own  passengers  are  injured,  the  first  company  is  responsible.  Railway  Co. 
r.  Barron,  5  Wal.  90.  And  a  railway  passenger  carrier  is  responsible  for  the 
sufficiency  of  a  carriage  which  it  borrows  and  u.ses  to  the  same  extent  as  for 
its  own.     Jetter  v.  New  York  &  Harlem  Railroad  Co.,  2  Key<'s.  l.'j|. 

8  Murch  V.    Concord    Railroad  Co.,   I)  Fost.  X.   H.   D;    Winterbottom  r. 

(n)  But  see  supra,  §  112,  notes  (c)  collision  occasioned  by  the  negligence 

and  ('/).  of  a  company  by  whose  road   he  in 

(/y)  See  Wright  v.  Midland  Rail-  travelling,  and  of  another  with  which 

way  Co.,  Law  Rep.  S  Exch.  137.   And  lie  has  no  contract,  ho  ni.iy  maint.iin 

see  also  Hannibal  &  St.  Josei)h  Rail-  a  suit  against  either  company.     Wa- 

road  Co.  r.  ^Martin,  11  Brad.  3^0,  in  bash,  St.  Loui.s,  &  Pacific  llailway  Co, 

which  it  is  held   that  a  company  is  r.  Shacklet,  105  111.  3(Jl. 
liable  for  injury  to  a   passenger  in-  (r)  .See  .>iM/>rfi,  note  (n).     In  Smith 

flicted  by  the  servants  of  another  com-  r.  St.  Louis  &  San  Krauci.sco  Railway 

pany   in    making   up  a  train   in    the  Co.,  9  Mo.  Ap.  598.  it  h  held  that  a 

depot  of  the  latter  company,  under  an  company  is  not  liable  for  injury  to  a 

arrangement   with  the  former.     But  passenger  on  ono  r.f  its  cars,  of  which 

where   a  passenger   is   injured  by  a  another  comiuny  is  bail.-o. 

[•r.or.J 


650  ARRANGEMENTS   BETWEEN   COMPANIES.  [PART   VI. 

*  3.  And  while  the  cases  recognize  the  duty  in  such  companies 
as  cany  passengers,  cither  upon  their  own  road  or  that  of  other 

Wright,  10  M.  &  \V.  109.  But  a  railway  company  owes  a  public  duty,  inde- 
pendent of  all  privity  of  contract,  to  keep  its  public  works  in  such  a  state  of 
repair,  and  so  watched  and  tended  as  to  insure  the  safety  of  all  who  are  law- 
fully on  them,  either  by  their  direct  permission  or  mediately  through  contract 
with  other  parties.  Sawyer  v.  Rutland  &  Burlington  Railroad  Co.,  27  Vt.  377. 
The  same  principle  is  maintained  in  Smith  v.  New  York  &  Harlem  Railroad 
Co.,  19  N.  Y.  127,  where  it  was  decided  that  a  switch-tender,  employed  by  a 
railway  company  on  a  portion  of  its  road  on  which  it  permits  another  company 
to  run  trains,  is  not  a  servant  of  the  latter;  and  an  engineer  of  the  latter, 
injured  by  the  negligence  of  such  switch-tender,  may  maintain  an  action 
against  the  company  employing  him.  But  where  animals  were  killed  by  the 
train  of  one  company,  while  rightfully  on  the  track  of  another  company,  it 
was  held  that  the  company  owning  the  road  was  responsible  for  the  damage. 
Indianapolis  &  Madison  Railroad  Co.  v.  Solomon,  23  Ind.  531.  So  an  apothe- 
cary', who  sold  a  deadly  poison  labelled  as  a  harmless  medicine,  was  held  directly 
liable  to  all  persons  injured  thereby,  in  consequence  of  the  false  label,  witliout 
fault  on  their  part.  The  liability  of  the  apothecary  arises,  not  out  of  any 
contract  or  privity  between  him  and  the  person  injured,  but  out  of  the  duty 
which  the  law  imposes  on  aU,  to  avoid  acts  in  their  nature  dangerous  to  the 
lives  of  others.  He  is  liable,  therefore,  though  the  poisonous  drug,  with  such 
label,  may  have  passed  through  many  intermediate  sales  before  it  reaches  the 
hands  of  the  person  injured,  on  the  same  principle  that  one  who  suffers  a 
dangerous  animal  to  go  at  large,  is  responsible  for  the  consequences.  Thomas 
V.  Winchester,  2  Seld.  397.  In  Toomey  v.  London,  Brighton,  &  South  Coast 
Railway  Co.,  3  C.  B.  n.  s.  146,  the  plaintiff  mistook  a  door  at  a  railway  station, 
and  passing  through  it,  fell  down  a  flight  of  steps  and  was  hurt.  There  was  a 
light  over  the  door  which  he  intended  to  pass  through,  and  a  printed  notice 
showing  the  purpose  of  it.  There  was  also  an  inscription  over  the  other,  but 
no  light.  The  defendant  could  not  read.  There  was  no  evidence  that  the 
steps  wei'e  more  than  ordinarily  dangerous.  The  company  was  held  not  lia- 
ble. But  a  railway  company  is  bound  to  fence  a  station  so  that  the  public 
may  not  be  misled,  by  seeing  a  place  unfenced,  into  injuring  themselves  by 
passing  that  way.  Where  a  passenger,  in  waiting  for  a  train,  had  gone  to  a 
public  house  for  refreshments,  the  porter  showing  him  the  way  with  his  lan- 
tern, and  hearing  the  bell  ring  started  out  for  the  station,  and  mistaking  the 
light  of  the  engine  for  that  of  the  station  crossed  an  open  space  direct,  and 
was  injured  by  falling  into  a  hole  three  feet  deep,  it  was  held  the  company 
were  liable.  Burgess  v.  Great  Western  Railway  Co.,  6  C.  B.  n.  s.  923.  And 
where  a  hackman  was  injured,  while  bringing  a  passenger  to  the  station,  by 
stepping,  without  fault,  into  a  hole  in  the  platform,  the  company  being  in 
fault  for  leaving  the  platform  in  that  condition,  it  was  held  that  he  might  re- 
cover. Tobin  I'.  Portland,  Saco,  &  Portsmouth  Railroad  Co.,  59  Me.  1S3.  And 
the  fact  that  the  platform  was  within  the  limits  of  the  highway  will  make  no  dif- 
ference, lb.  A  railway  company  has  been  held  not  liable  for  an  injury  through 
[*604] 


I 


§  144.]       DUTY    OF   COMPANIES   TO    PASSENGERS   AND   OTHi:US.  C',] 

companies,  bv  |M;iiuissiuii  or  lease,  to  make  tho  apiiruaches  to 
sucli  road  safe,  at  all  points  where  freight  or  passj-ngers  are  uhu- 
ally  received,  this  duty  does  not  exist  in  regard  to  a  pasHeuger 
who,  out  (jf  speeial  favor,  is  allowed  to  get  upon  the  train  at  an 
unusual  place  for  reeeiving  passengers.^  And  the  same  rule  haa 
been  extended  to  the  owners  of  docks,  who  keejj  up  the  gangways 
to  ships  while  remaining  at  tlicir  docks  ;  and  where  they  were 
left  unsafe  by  the  negligence  of  the  servants  having  charge  of  the 
same,  and  one  who  visited  a  ship  in  the  dock  on  business,  by 
invitation  of  the  officer,  was  injured  by  the  defect  in  the  gangway 
without  his  own  fault,  it  was  held  the  dock  owners  were  respon- 
sible.4 

4.  And  one  who,  by  favor,  is  allowed  to  travel  upon  a  freight- 
car,  contrary  to  the  usual  custom  of  the  company,  is  boimd  to  be 
satisfied  with  such  facilities  and  accommodations  as  usually  exist 
upon  freight  trains,  as  railway  companies  are  not  to  be  regarded 
as  common  carriers  of  ])asscngers  upon  their  freight  trains,  unless 
they  make  it  an  habitual  business.^ 

5.  It  has  been  held  that  natural  persons,  who  assume  no  j)nl)lic 
*  duties,  arc  liable,  if  they  suffer  their  property  to  remain  in  a 
dangerous  condition ;  as  that  the  occupier  of  land  is  bound  to 
fence  off  a  hole  or  area  upon  it  which  adjoins  or  is  so  clo.^o 
to  a  highway  that  it  may  be  dangerous  to  passcr.s-by  if  left 
unguarded.''* 

a  defect  in  a  crane  wliich  it  had  fiirniblied  to  a  consignee  of  heavy  pood-s  to 
enable  him  to  unlade  them  from  the  cars,  although  sucli  crane  wivs  known  to 
tlie  company  to  be  inadequate  for  the  use  for  wiiich  it  was  furnished,  the 
party  injured  having  been  employed  to  assist  tho  consignee,  and  liaving  tln'rcby 
lost  his  life.  The  ca.se  was  put  ou4he  ground  of  want  of  privity,  it  l>eing 
admitted  that  the  company  in  such  case  wo\dd  have  been  liable  to  the  party  to 
whom  it  furnished  the  crane,  if  he  or  his  ordinary  servants  had  sustained 
injury  in  its  prudent  and  lawfid  use.  But  the  party  hero  was  called  in  for  tiie 
occasion.  Blakemore  v.  Bristol  it  Exeter  Uaihvay  Co.,  8  Kllis  A:  B.  lu;J').  It 
seems  to  us  the  principle  of  want  of  privity  is  here  inisn])plied.  This  is  n  clear 
case  of  tort  and  not  of  contract,  and  the  party  injured,  although  calletl  in  for 
the  occasion,  was  pro  hac  vire  a  servant  of  the  Ixirrower,  and  it  was  tl«o  same 
as  if  the  borrower  himself  had  been  injured.  Tho  furnishing  of  the  instru- 
ment had  express  and  direct  referencre  t<i  its  use  liy  the  consignee  and  his  ser- 
vants, extraordinary  as  well  ;is  ordinary. 

*  Smith  V.  London  &  St.  Katherine's  Dock  Co.,  Law  Rop.  3  C.  V. 
32G. 

^  Barnes  r.  Ward,  2  Car.  i<  K.  OGL 

[•605] 


652  ARUANGEMENTS   BETWEEN    COMPANIES.  [PART    VI. 

C.  Tlic  saino  nild  has  often  been  extended  to  turnjiike  roads  ^ 
and  to  ])laiik  roads,  wliere  the  statute  made  no  provision  lor  the 
liahilily  ol'  the  eoinpany."  And  the  same  ride  has  been  extended 
genei'ally  to  railway  conipaniiis  in  this  eoiintry,  without  question, 
so  far  as  persons  are  rightfully  in  the  use  of  the  same.^  It  was 
hold  that  the  owner  of  a  car  which  was  in  the  use  of  another 
party,  upon  a  railway,  l)y  contract  between  him  and  the  company, 
and  which  suffered  an  injury  by  reason  of  the  bad  state  of  tlie 
railway,  might  maintain  an  action  against  the  company.^ 

7.  This  princi|)le  or  an  extension  of  it,  has  been  a  good  deal 
discussed  in  a  case  in  the  House  of  Lords.^     The  plaintiffs,  *  a 

"  Uaiulall  V.  Cheshire  Turnpike  Co.,  G  N.  II.  147;  Towusheud  v.  Susque- 
hanna Turnpike  Co.,  G  Johns.  90. 

^  Davis  V.  Lamoille  County  Plank  Road,  27  Vt.  G02. 

In  the  case  of  Gibbs  v.  Liveriwol  Docks,  3  II.  &  N.  104;  s.  c.  31  Law  T. 
22,  it  was  held,  in  the  ExcluKpier  Ciianiber,  revcrsinfv  the  judgment  of  the 
Court  of  Exchecpier,  that  it  is  the  duty  of  those  receiving  tolls,  whether  as 
trustees  or  otherwise,  not  to  allow  a  dock  to  remain  open  for  public  use,  when 
they  know  that  it  is  in  such  a  state  that  it  cannot  be  used  without  danger, 
citing  Parnaby  v.  Lancaster  Canal  Co.,  11  A.  &  E.  223,  and  distinguishing 
the  ca.se  from  Metcalfe  v.  Iletherington,  11  Exch.  257.  But  it  seems  the 
party  is  never  liable  in  such  case,  unless  he  knew  or  might  have  known  of  the 
defect  but  for  his  own  neglect  of  duty.  l\lc(jiriity  v.  New  York,  5  Duer,  G74. 
See  supra,  note  9. 

*  Cumberland  Valley  Railroad  Co.  v.  Hughs,  11  Pciiii.  St.  Ml. 

0  Mersey  Docks  &  Harbor  Board  v.  Penhallovv,  Law  Rep.  1  H.  L.  93;  s.  c. 
12  Jur.  N.  H.  571.  The  recent  cases  bearing  on  the  general  (luestion  of  the 
responsibility  of  one  party  for  negligence  in  his  own  business  incidentally 
operating  to  produce  injury  to  another,  which  are  here  discus.sed  by  court  or 
counsel,  are  the  following:  Metcalfe  v.  Iletherington,  5  II.  &  N.  719;  Coe  v. 
Wise,  10  Jur.  n.  h.  1019;  Ilolliday  v.  St.  Leonard,  8  Jur.  n.  s.  79;  s.  c.  U 
C.  B.  N.  8.  192;  Pickard  v.  Smith,  10  C.- B.  N.  8.  470;  Southampton  &  Itchin 
Bridge  Co.  v.  Local  Board  of  Health,  8  Ellis  &  B.  801;  Ruck  r.  Williams, 
3  II.  &  N.  308;  Wliitchous(!  v.  Eellowcs,  10  C.  B.  N.  s.  7(ir) ;  Brownlow  v. 
Metropolitan  Board,  8  ,Iur.  n.  .s.  891  ;  s.  c.  ^'^  ('.  B.  n.  h.  708;  Jones  v.  Mersey 
Board,  11  Jur.  n.  s.  740.  There  is  obviously  considerable  conflict  in  the  de- 
cisions bearing  on  this  general  question.  The  result  of  the  discussion  in  the 
latest  case  before  the  court  of  last  resort  in  England,  .vm/j/yj,  seems  to  be,  that 
the  statute  is  the  only  and  suliicient  warrant  for  creating  any  such  public  work 
as  a  railway,  harbor,  or  canal;  that  the  responsibility  of  those  to  whom  the 
power  is  given,  depends  on  the  provisions  and  construction  of  the  statute: 
that  it  is  unimportant  whether  the  grantee  of  the  power  is  a  natural  per.son  or 
a  corporation,  the  responsibility  in  either  case  will  bo  the  same;  that  in  the 
absence  of  all  special  statutory  provision  to  tlie  contrary,  the  builders  of  such 
works,  and  those  who  operate  the  same  for  their  own  benefit,  or  the  benefit  f>f 

[*6or>] 


§  144.]       DUTY    OF   COMPANIES   TO    PASSENGERS   AND   OTHERS.  0o3 

corporation,  were  empowered  by  act  of  parliament  to  make  and 
maintain  docks  for  tlie  use  of  the  i)ul>lic,  and  tu  take  tolks  from 
persons  usini^  them.  The  corporation  did  not,  uov  did  its  indi- 
vidual members,  derive  any  emolument  from  the  tolls,  but  wa8 
bound  to  apply  them  in  maintainintr  the  ducks,  and  in  jjavini:  a 
debt  contracted  in  making  them.  The  corporation  had  the  usual 
powers  of  ajtpointing  water-baililTs,  harbor-masters,  and  servants, 
by  wliose  hands  the  duties  of  superintendence  were  carried  out. 
A  ship,  in  entering  one  of  the  docks,  struck  against  a  bank  of 
mud  left  at  its  entrance,  of  the  existence  of  which  the  corporation 
was  either  aware,  or  negligently  ignorant.  The  ship  and  cargo 
being  both  injured,  separate  actions  were  brought  by  the  resi)cc- 
tive  owners.  It  was  held,  aflirming  the  judgment  of  the  Exche- 
quer Chamber,^*^  that  as  long  as  the  docks  were  open  for  the  use  of 
the  ])ublic,  the  corporation  were  bound,  whether  they  received  the 
tolls  for  i)rivate  or  fiduciary  purposes,  to  take  care  that  the  docks 
were  navigable  without  danger  ;  and  consdiuently  that  they  were 
liable  in  damages. 

8.  It  was  here  held,  that  in  construing  statutes  creating  bodies 
corporate,  such  as  the  ])laintiffs,  the  legislature  must  be  consid- 
ered, unless  the  contrary  appears,  to  intend  that  the  corporate 
bodies  shall  be  under  the  same  liabilities  and  duties  as  aro 
imposed  by  the  general  law  upon  private  persons  doing  the  same 
things. 

0.  A  railway  company  which  for  an  agreed  compensation  re- 
ceives and  draws  over  its  own  line  the  cars  of  a  connecting  road 
*  is  responsible,  as  a  common  carrier,  for  the  safe  delivery  of  the 
passengers  and  freight,  the  same  as  in  other  cases.  And  where, 
])y  an  agreement  between  the  two  companies,  the  latter  is  to 
indemnify  the  former  from  all  claims  for  damages  in  conscjiuence 
of  the  transjiortation,  unless  caused  l)y  the  default  of  the  trans- 
others,  are  boiiiul  to  see  that  tlioy  are  constructed  with  reasonable  care  nnJ 
skill,  and  maintained  in  the  same  condition.  It  was  at  one  time  supposed 
that  the  grantee  of  such  a  power  might  excuse  hinis«>lf  from  all  responsibility 
by  showing  good  faith  and  diligence  in  the  discharge  of  the  public  duly  im- 
posed by  the  grant  of  the  power.  Sutton  r.  Clarke,  G  Taunt.  20.  Rut  it  h.xs 
since  been  hold  that  this  is  not  enough,  and  that  the  grantees  of  such  .i  \\>v;er 
are  bound  to  conduct  themselves  in  a  skilful  manner,  and  to  do  all  th:il  any 
skilful  person  could  reasonably  bo  required  to  do  in  such  a  caae.  Jouea  r. 
Bird,  5  B.  &  A.  837. 

10  3  II.  &  X.  IGl;  4  Jur.  n.  s.  G36. 

[•607] 


654  ARRANGEMENTS   BETWEEN   COMPANIES.  [PART  VI. 

porting  company,  or  from  some  defect  in  its  road,  this  will  leave 
the  transporting  company  responsible  both  under  the  contract, 
and  independently  of  it,  upon  general  principles,  for  an  injury 
caused  by  a  defect  in  its  track,  although  without  its  fault.^^ 


SECTION  IV. 

Powers  and  Duties  of  Lessees  of  Railways. 

1.  Construction  of  a  lease  in  an  import-  I  2.  Lesseesof  railways  liable  for tlieir  own 
ant  case.  I  acts,  and  for  many  acts  of  lessors. 

§  145.  1.  A  very  elaborate  and  important  case  upon  the  relative 
rights  and  duties  of  the  lessors  and  lessees  of  railways  came 
before  the  Court  of  Common  Bench  in  June,  1851,  and  the 
Exchequer  Chamber  in  January,  1853.  The  importance  and  dif- 
ficulty of  the  subject,  and  the  few  cases  upon  it  which  have  yet 
arisen,  will  justify  an  extended  notice  of  the  points  decided  in  the 
court  of  last  resort.^     In  1836  a  company  (afterwards  called  the 

"  Vermont  &  Massachusetts  Railroad  Co.  r.  Fitchburg  Railroad  Co.,  14 
Allen,  462.  A  contract  by  the  owners  of  a  railway,  to  be  made  under  au  act 
of  incorporation,  with  the  owners  of  a  rival  railway,  not  to  continue  such  road 
beyond  a  certain  point,  is  void  as  contravening  public  policy.  Such  a  contract 
does  not  affect  a  prior  agreement  between  the  owners  of  such  road,  who  also 
owned  another  railway  adjoining  the  latter,  to  di\ide  the  through  fares  of  pas- 
sengers on  such  continuous  road  in  a  certain  proportion;  although  the  former 
contains  a  provision  to  deduct  an  additional  sum  monthly  from  such  thi'ough 
fares  as  a  consideration  for  entering  into  such  new  illegal  contract;  and  such 
through  fares  must  be  divided  as  though  such  second  and  illegal  contract  had 
never  been  made. 

The  division  of  the  through  fares  of  passengers  on  a  connected  line  of 
railway,  consisting  of  two  adjoining  roads,  owned  by  different  companies, 
according  to  certain  regulations,  for  six  years  without  objection,  creates,  by 
construction,  a  modification  of  any  former  contract  in  conflict  therewith,  and 
becomes  binding  on  the  respective  parties,  until  annulled  or  suspended  by  a 
new  contract.  Hartford  &  Xew  Haven  Railroad  Co.  v.  New  York  &  New 
Haven  Railroad  Co.,  3  Rob.  411.  All  persons  who  carry  on  the  business  of 
common  carriers  of  goods  or  passengers  on  a  railway  will  be  held  responsible 
to  third  persons  for  any  damage  sustained  by  their  default,  even  when  they 
were  acting  as  receivers  of  the  Court  of  Chancery  of  another  state.  Paige  v. 
Smith,  99  Mass.  395. 

^  West  London  Railroad  Co.  f.  London  &  Northwestern  Railway  Co.,  11 
C.  B.  327;  s.  c.  18  Eng.  L.  &  Eq.  481. 
[*607] 


§  145.]  POWERS   AND    DUTIES   OF   LESSEES.  O'>0 

West  London  Railway  Company)  was  incoritorated  hy  act  of  par- 
liament for  the  makin<^  of  a  railway  from  the  Kt-nsin^'-tofi  ("anal 
to  join  the  London  and  Birmingham  (afterwards  called  the  Lon- 
don and  Xorthwestern)  and  tin;  Great  Western  Railways  at  a 
place  called  llolsden  (Jreen,  and  certain  duties  were  by  the  act 
cast  upon  the  company  ;  and,  among  other  things,  it  was  provi- 
ded that,  if  the  railway  should  be  abandoned,  or  should  after  its 
comjjletion,  cease  for  the  space  of  three  years  to  be  used  as  a  rail- 
way, the  land  taken  by  the  company  for  the  purposes  of  the  act 
should  revert  to  the  owners  of  the  adjoining  land.  In  February, 
1837,  the,  West  London  Railway  Company  entered  into  an  agree- 
ment with  the  Great  Western  Railway  Company,  under  which 
the  last-mentioned  company  bound  themselves  to  stop  certain  of 
their  trains  at  a  point  where  their  railway  intersected  '  the  West 
London  Railway,  for  the  purpose  of  transferring  j)assengers  and 
goods  from  one  railway  to  the  other,  and  to  stop  their  trains  fur 
the  purpose  of  meeting  corresponding  trains  of  that  company,  in 
the  manner  ])articularly  detailed  in  the  deed.  In  1840  another 
act  (3  <fe  4  Vict.  c.  105)  passed,  giving  further  powers  to  the  West 
London  Railway  Company  ;  the  thirty -fourth  section,  reciting  the 
agreement  of  February,  1837,  regulated  the  mode  of  crossing, 
until  the  plaintiffs'  railway  should  be  completed  ;  the  thirty-sixth 
section  saved  the  plaintifls'  right  under  that  agreement ;  and  the 
thirty-seventh  section  provided,  that  if  the  plaintilTs'  line  was 
abandoned,  or  ceased  to  be  used  as  a  railway  for  three  years  after 
its  completion,  then,  on  payment  or  tender  to  them  by  the  Great 
Western  Railway  Company  of  the  purchase-money  of  the  piece  of 
land  where  the  railways  crossed,  the  said  land  shoidd  vest  in  the 
Great  Western  Railway  Company.  Uy  a  subsequent  act  (8  &  !• 
Vict.  c.  150),  reciting  that  "  it  had  been  found  that  the  said  West 
London  Railway  [which  it  ap|)eared  in  evidence  had  been  worked 
with  passenger  trains  as  well  as  with  goods  trains]  could  not  be 
worked,  as  a  separate  and  indoj)endent  undertaking,  with  advan- 
tage to  the  proprietors  thereof,  but  that  the  same  might  be  advan- 
tageously worked  and  used  in  connection  with  the  said  London 
and  Birmingham  Railway,  and  the  said  Great  Western  Railway, 
or  either  of  them,  by  both  or  cither  of  the  companies  to  whom 
the  said  last-mentioned  railways  belonged  ;  that  the  West  London 
Railway  Company  were  therefore  desirous  of  letting  the  said  rail- 
wav  on  lease  to  the  London  and  Birmintrham  Railway  Company  : 

[•G08J 


656  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 

and  that  the  last-mentioned  company  were  willing  to  accept  such 
lease,  subject  to  certain  terms  and  conditions  which  had  Ijeen 
mutually  agreed  on  between  the  said  two  companies,"  —  the  West 
London  Railway  Company  was  authorized  to  lease  to  the  London 
and  Northwestern  Railway  Company  their  railway,  and  all  their 
rights,  powers,  and  privileges  in  relation  thereto,  subject  to  the 
provisions  of  the  act,  and  to  the  performance  of  the  conditions  to 
be  mentioned  in  such  lease.  By  the  lease,  which  was  afterwards 
executed  in  pursuance  of  this  act,  the  London  and  Northwestern 
Railway  Company  covenanted,  among  other  things,  that  they 
would  "  at  their  own  expense,  during  the  continuance  of  the 
lease,  efficiently  work  and  repair  the  railway  and  works  thereby 
demised,  and  indemnify  the  West  London  Railway  Company 
against  all  liabilities,  loss,  charges,  *  and  expenses,  claims,  and 
demands,  whether  incurred  or  sustained  in  consequence  of  any 
want  of  repair,  or  in  consequence  of  not  working,  or  in  any  man- 
ner connected  with  the  working  of  the  same  railway  or  works  ; 
but  the  West  London  Railway  Company  shall  have  no  control 
whatever  over  the  working  or  management  by  the  London  and 
Birmingham  (Northwestern)  Railway  Company  of  the  West  Lon- 
don Railway  or  works."  It  was  held  that  in  order  to  perform 
their  covenant  to  work  efficiently,  the  defendants  were  not  bound 
under  all  circumstances  to  work  the  line  for  passenger  traffic,  but 
that,  if  as  much  gross  proceeds  could  be  obtained  by  efficiently 
working  the  railway  for  goods  only,  as  for  passengers  only,  or  for 
both  passengers  and  goods,  the  covenant  was  well  performed  ; 
that  the  agreement  of  February,  1837,  with  the  Great  Western 
Railway  Company,  was,  by  virtue  of  the  provisions  in  the  leasing 
act  and  the  lease  itself,  transferred  to  the  defendants,  the  lessees, 
and,  consequently,  that  they  had  power  to  compel  the  Great 
Western  Railway  Company  to  stop  trains  on  their  line,  pursuant 
to  the  provisions  of  that  agreement ;  that,  although  the  defend- 
ants had  power  to  stop  the  Great  Western  trains,  they  were  not 
bound  to  exercise  it,  necessarily,  as  a  part  of  the  efficient  working 
of  the  line  demised,  and  that  they  were  not  bound  necessarily  to 
work  the  demised  line  in  connection  with  the  trains  on  the  Great 
Western  Railway  ;  that  there  was  no  covenant  in  the  lease  to  bind 
the  defendants  to  work  the  demised  line  in  connection  with  their 
road  and  the  Great  Western  Railway,  or  either  of  them,  but  that 
it  would  be  for  the  jury  to  say  whether  or  not  they  could  practi- 
[*609] 


§  145.]  POWERS    AND    DUTIES   OF   LP:SSEE3.  Co7 

cally  work  the  line  efficiently,  without  some  connection  with  one 
or  other  of  those  railways ;  that,  for  the  purj)Ose  of  considering 
the  liability  of  the  defendants,  they  were  not  to  be  treated  by  the 
jury  as  if  they  were  lessees  of  a  separate  and  independent  line, 
havini^  no  control  over  the  other  two  railways,  but  that  the  cov- 
enant to  work  the  demised  line  efficiently,  must  Ije  construed  with 
reference  to  the  subject-matter  and  the  character  of  the  defend- 
ants;  that  the  obligation  of  the  defendants  under  their  covenant, 
was  not  limited,  as  decided  by  the  court  below,  to  the  indemnifi- 
cation of  the  plaintiffs  from  the  obligations  cast  upon  them  by 
their  acts  of  incorporation.  The  court  say,  in  substance  :  *  If 
this  railway  had  been  leased  to  a  simple  individual,  or  company 
without  any  connection  with  any  other  railway,  and  leased  alone, 
the  measure  of  efficient  working,  we  cannot  help  thinking,  would 
be  very  different  from  what  would  be  recjuired  from  a  company 
whose  line  was  connected  with  it,  who  had  the  entire  control  over 
their  own  line,  and  were  armed  with  a  power  of  adding  to  the 
traffic  of  the  railway,  by  the  control  possessed  over  another  line, 
and  whose  capabilities  and  powers  in  this  respect  were  reasons 
■which  disposed  parliament  to  jtcrmit  the  lease  to  be  made  to 
them.  It  is  difficult,  indeed  almost  impossible,  to  define  the  pre- 
cise nature  and  degree  of  efficient  working  which  sucli  a  comjtany 
ought  to  apply,  under  this  covenant ;  not  so  difficult  to  say  that 
it  ought  to  be  different  and  greater  than  would  be  re(|uired  from 
a  company  or  an  individual  who  had  nothing  but  the  railway 
leased.  They  could  only  be  required  to  supply  convenient  accom- 
modation and  attendance  for  the  receipt,  and  sufficient  means  of 
carriage,  of  such  goods  and  passengers  as  might  be  offered  at  one 
terminus,  or  any  intermediate  station,  to  be  carried  to  the  other 
terminus,  or  some  other  intermediate  station;  and  this  however 
small  the  gross  receipt  might  be.  But  that  would  be  too  small  a 
measure  of  efficient  working,  in  the  case  of  tlit^se  defendants,  who 
have  the  power  of  supplying  more  goods  and  passengers  them- 
selves by  facilitating  the  transit  of  both  from  Ilolsdcn  to  the 
Kensington  terminus  or  Great  Western  station,  or  l)y  increased 
facilities  for  receiving  them  at  the  Kensington  terminus,  by 
arrangements  within  their  power,  without  any  serious  injury  to 
their  own  concern.  They  are  certainly  not  bound  to  make  a  sac- 
rifice of  their  own  concerns  for  the  purpo.se  of  efficiently  working 
this  line  so  as  to  produce  the  greatest  profit  to  the  ]il:iiutiffs  and 
VOL.  I.  — 42  [•010] 


658 


ARRANGEMENTS   BETWEEN   COMPANIES. 


[part  VI. 


themselves.  Tbc  covenant  must  have  a  reasonable  construction 
in  this  respect.  But  they  are,  we  think,  bound  to  do  more  than  a 
lessee  of  merely  the  railway  in  question  would  do,  unconnected 
with  any  other. 

2.  It  seems  to  be  regarded  as  settled  that  the  persons  or  corpo- 
ration who  come  into  the  use  of  a  railway  company's  powers  and 
privileges,  are  liable  for  their  own  acts  while  continuing  such  use, 
and  also  for  the  continuance  permissivcly  of  any  wrong  which  had 
been  perpetrated  by  such  company  upon  land-owners  *  or  others, 
by  means  of  permanent  erections,  which  still  remain  in  the  use 
of  their  successors.^  (a)  Thus  it  has  been  held  that  the  lessees  of 
a  railway  are  liable  to  a  penalty,  under  the  statute,  for  not  having 
a  bell  upon  their  engines,  and  not  ringing  it,  as  required  by  the 
statute.^  But  the  lessees  of  a  railway  are  not  liable  for  the  acts 
of  the  servants  of  the  lessors.'^ 


SECTION    V. 


Contracts  between  Companies  regulating  Traffic. 


1.  Such   contracts   generally   held  valid 

and  binding. 

2.  Arrangements   to   avoid    competition 

valid.     Pooling . 


3.  Construction,  force,  and  operation  of 
contracts  between  companies. 


§  146.  1.  It  seems  in  general  to  have  been  considered,  that 
contracts   between  different  connecting  companies  with  a  bona 

2  In  regard  to  the  construction  of  contracts  between  different  companies  for 
the  mutual  use  of  each  other's  line,  or  the  line  of  one  road  by  the  other,  tolls, 
&c.,  see  Lancashire  &  Yorkshire  Railway  Co.  v.  East  Lancashire  Railway  Co., 
7  Exch.  126;  8  Eng.  L.  &  Eq.  564;  s.  c.  reversed  in  Exchequer  Chamber, 
9  Exch.  591;  25  Eng.  L.  &  Eq.  465;  and  affirmed  in  the  House  of  Lords,  5 
H.  L.  Cas.  792;  36  Eng.  L.  &  Eq.  34.  It  was  held  in  a  late  Scotch  case,  on 
appeal  in  the  House  of  Lords,  that  under  an  act  of  parliament  requiring  one 
company  to  accept  a  lease  of  and  operate  the  other's  road,  so  soon  as  it  was  in 
readiness,  the  lessees  were  bound  to  accept  any  reasonable  portion  of  the  road, 
when  completed,  it  being  such  a  portion  as  might  be  worked  with  advantage. 
Edinburgh  &  Glasgow  Railway  Co.  v.  Stirling  Railway  Co.,  1  Macq.  Ap.  Cas. 
790;  Brown  i-.  Cayuga  &  Susquehanna  Railroad  Co.,  12  N.  Y.  486. 

8  Linfield  v.  Old  Colony  Railroad  Co.,  10  Cush.  562. 

*  Waif.  Railw.  184,  citing  two  cases  not  reported. 


[*611] 


(a)  See  supra,  §  142. 


§  14G.]  CONTRACTS   REGULATING    TRAFFIC.  0.09 

fide  view  to  rcrrulato  trallic,  in  a  reasonable  and  just  manner, 
were  legal  and  binding.^  Jiut  when  it  is  considered  that  tliesc 
companies  have  to  a  very  great  extent  a  monopoly  of  the  traflic 
and  travel  of  the  country,  the  power  to  regulate  fares  and  freight 
by  arrangement  between  the  different  companies  is  certainly  one 
very  susceptible  of  abuse.  IJut  there  is  ordinarily  very  little 
*  danger  that  they  will  willingly  incur  the  serious  re[)robation  of 
pul)lic  opinion.  And  it  has  sometimes  i)een  doubted  whether  con- 
tracts, whereby  one  railway  company  seeks  to  assume  the  entire 
business  of  other  companies,  affording  them  a  guaranty  in  regard 
to  stock  and  profits,  or  either,  could  be  regarded  as  coming  within 
the  fair  interpretation  of  the  I^nglish  general  statutes,  allowing 
one  company  to  contract  for  running  upon  the  track  of  other 
companies,  for  tolls,  and  so  couhl  be  held  valid  by  the  courts  of 
that  country,  either  in  law  or  equity.'-^  But  some  of  the  later 
cases  seem  to  sustain  such  contracts.^ 

2.  There  is  no  principle  of  public  policy  which  renders  void  a 
traflfic  arrangement  between  two  lines  of  railway  for  the  purj)0se 
of  avoiding  competition.  And  if  the  arrangement  embrace  the 
division  of  the  net  earnings  of  both  companies  in  certain  definite 
proportions,  the  court  will  not  interfere  upon  the  ground  that  one 
comijany  may  not  adventure  its  profits  upon  the  chances  of  the 
earnings  of  another  company.*  (a)  And  it  is  no  valid  objection 
that  such  division  is  based  upon  the  experience  of  the  result  of 
past  traffic* 

1  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Northwestern  R.iil- 
way  Co.,  17  Q.  B.  652;  s.  c.  9  Eng.  L.  &  Eq.  394.  Lord  Camimikli,  says 
here,  that  if  the  object  of  the  contract  were  to  create  a  monopoly,  and  to  de- 
prive the  public  of  all  benefit  of  competition,  it  might  be  illegal,  but  that  an 
agreement  that  one  company  sliall  not  interfere  or  compete  with  the  other,  is 
no  more  illegal  than  a  contract  by  which  one  tradesman  or  mfchanic  agrees 
not  to  continue  his  business  in  a  particular  place.  Same  ca-^e  in  Chancery, 
before  Lord  Cottenham,  2  Macn.  &  (x.  324,  whore  a  similar  view  is  taken  of 
the  legality  of  the  contract.  Lord  Langdalk.  in  Colman  i'.  Eastern  Counties 
Railway  Co.,  10  Beav.  1;  s.  c.  4  Railw.  Cas.  513. 

2  Simpson  v.  Denison,  10  Hare,  51 ;  s.  c.  13  Eng.  L.  &  Eq.  350. 
8  Supra,  §  142. 

*  Hare  i".  London  &  Xorthwesteni  llailw.iy  Co.,  2  Ji>iins.  &  IL  80;  9.  C. 
7  Jur.  N.  s.  1145;  infm,  §  148. 

(a)  Morrill  v.  Boston  &  Maine  Rail-     !Maine.  by  statute  preventing  the  pool- 
road  Co.,   55  N.  IL  531.     But  such     ing  of  earnings.     lb. 
arrangements  may  be  forbidden,  as  ia 

[•012] 


660     '  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART  VI. 

3.  There  is  a  case  in  New  Hampshire,^  where  the  operation  and 
construction  of  a  contract  between  different  railway  corpora- 
tions, for  conducting  the  traffic  across  both,  is  considerably  dis- 
cussed. The  ordinary  rules  of  construction  of  contracts  were 
held  applicable  to  such  cases ;  i.e.,  that  the  existing  powers  and 
duties  of  the  companies  and  the  leading  objects  of  the  contract 
should  be  considered  in  aid  of  the  interpretation.  And  it  was 
held  the  contracting  companies  were  not  thereby  restricted  from 
acquiring  new  powers,  with  reference  to  distinct  objects,  but  such 
new  powers  must  be  kept  aloof  from  and  so  as  not  to  interfere 
with  the  objects  contemplated  by  the  contract,  and  could  not  be 
allowed  to  have  any  operation  upon  its  construction.  The  corpor- 
ations may,  by  consent,  modify  the  operation  of  such  contract  or 
the  application  of  the  earnings  of  the  roads ;  but  shareholders, 
who  have  not  assented  to  such  modification  of  the  contract,  may, 
in  equity,  hold  both  corporations  to  account  for  the  net  income, 
according  to  the  terms  of  the  contract.  And  if  the  contract 
provides  for  deciding  all  disputes  under  it  by  arbitration,  a  court 
of  equity,  upon  such  a  bill,  may  enjoin  the  corporations  from  sub- 
mitting the  questions  involved  to  such  arbitration. 


SECTION   VI. 
What  constitutes  a  Perpetual  Contract  between  Companies. 


1.  Railway  connections  commonly  tem- 
porary. 


2.  Such  arrangements  matter  mainly  of 
public  convenience  and  subject  to 
legislative  control. 


§  147.  1.  Where  in  the  charter  of  a  railway  company  a  right  is 
reserved  to  the  legislature  to  allow  other  railways  to  connect 
with  the  former,  upon  such  terms  as  shall  be  reasonable,  com- 
plying with  the  established  regulations  of  such  company  upon  the 
subject,  and  in  pursuance  of  such  reservation  a  junction  is  made 
by  a  second  railway  company  with  the  first,  which,  in  faith  of 
such  connection,  proceeds  to  make  expensive  and  permanent 
arrangements  for  the  accommodation  of  the  enlarged  business 
thus  brought  upon  its  track,  it  was  held,  that  this  imposed  no 
*  obligation  upon  the  second  company  to  continue  this  connection 
5  ;Marsh  v.  Eastern  Railroad  Co.,  43  N.  H.  515. 
[*613] 


§  148.] 


CONTRACTS   ULTRA    VIRKS. 


G»U 


permanently ;  and  also  that  the  second  company  mi^'ht  lawfully 
obtain  an  extension  of  their  own  road,  so  as  to  do  their  own  husi- 
ncss  withont  continuing  the  connection.^ 

2.  It  seems  that  ordinarily  a  mere  Icfrislative  pcrmissi'm  to 
railway  conn)anics  to  connect  their  lines  imi)Oses  no  obligation 
upon  either  company  to  do  so.  And  if  that  were. to  be  so  regarded, 
it  is  certain  that  no  absolute  vested  riglit  to  insist  u\)on  the  per- 
manency of  such  coimection  could  exist  in  either  company,  which 
it  would  not  be  competent  for  the  legislature  to  dissolve.  After 
the  connection  is  made,  it  is  optional  with  either  party  to  discon- 
tinue it,  and  clearly  so  by  legislative  permission.  p]ven  after 
such  connection  is  made,  it  is  not  incumbent  upon  either  com- 
pany to  continue  the  same  gauge,  or,  if  so,  such  right  cannot  by 
possibility  exist  until  the  connection  is  made,  and  if,  before 
that,  either  company,  by  legislative  act,  is  relieved  from  all  obli- 
gation to  connect,  this  will  terminate  all  possible  claim  on  the 
part  of  the  othcr.^ 

SECTION    VII. 


Contracts  hy  liaihcays  ultra  vires  and  Illegal. 


1.  Contracts  to  make  erections  not  an- 

tliorized  by  tlieir  eliarter. 
n.  (a)  Contracts  for  sale  or  purcliase 
of  road. 

2.  Contracts    to  inilemnify    other    com- 

panies against  expense. 
.3.  Contracts  to  divide  profits. 

4.  Contracts   for  land    for   alteration   of 

a    branch,   pending  application   to 
legislature  for  jjowcr  to  alter. 

5.  Acceptance  of  bills  of  exchange.     No 

implied  power, 
n.  (c)  (Juaranty   of  bonds   of    other 
company.    Issue  of  preferred  stock. 
G.  Contracts  ultra  rhrs  cannot  bo  specifi- 
cally enforced  against  the  director;^. 


7.  Money  unlawfully  borrowed  company 

must  refund. 

8.  Confirmation     of     acts    ultra     r/Vrj. 

Acquiescence  does  not  confirm. 
Otiicrwise,  sometimes,  acxreptnncc 
of  consideration. 

9.  10.  Company     not    restrained    from 

making  unlawful  payments  on  the 
ground  of  policy. 
11.  Qnarc,  if  there  is  legal  distinction 
between  matters  of  internal  man- 
agement beyond  powers,  and  other 
matters  beyond  powers. 
u.  15.  Permanent  arrangement*  be- 
tween companies  inditlcrent  stales 
ultrd  viris. 


§  148.  1.  It  has  been  considered,  that  a  contract  by  a  railway 
company  with  the  corporation  of  a  city,  l>y  which  the  company 

1  Boston  &  Lowell  Railroad  Co.  r.  Boston  &  Maine  Railroad  Co.  .5  Gush.  375. 

2  Androscoggin  &  Kennebec  Railroad  Co.  v.  Androscoggin  Railro.id  Co., 

52  Me.  417. 

[•G13] 


662  ARRANGEMENTS   BETWEEN    COMPANIES.  [PART  VI. 

bind  themselves  to  erect  a  bridge  and  other  accessory  works 
across  a  river,  at  a  point  where  by  their  charter  they  are  not 
authorized  to  pass,  and  to  do  this  by  a  definite  time,  and  in  de- 
fault to  pay  one  thousand  pounds  as  liquidated  damages,  *  such 
works  being,  without  an  act  of  parliament,  a  nuisance,  is  an  illegal 
contract,  and  equally  so  notwithstanding  a  stipulation  that  the 
company  shall  in  the  mean  time  exert  themselves  to  obtain  an 
act  authorizing  the  erections.^  (a) 

2.  And  where  the  chairman  of  the  Southeastern  Railway  Com- 
pany promised  the  managing  committee  of  a  proposed  railway 
company,  that  in  consideration  of  their  not  abandoning  their 
project,  but  pursuing  it  in  parliament,  the  Southeastern  Railway 
Company  would,  in  case  of  their  bill  being  rejected,  insure  the 
company,  of  which  they  were  the  managing  committee,  against 
all  loss,  and  would  pay  all  expenses  incurred  by  them  in  en- 
deavoring to  obtain  the  act ;  and  the  Southeastern  Railway  Com- 
pany were  authorized,  by  their  acts,  to  apply  their  funds  in 
certain  ways,  not  including  this  :  it  was  held  ^  that  the  agreement 
was  void,  as  it  was  an  agreement  made  by  contracting  parties 
(who  must  be  presumed  to  know  the  powers  of  the  defendants' 
company,  by  their  acts  of  parliament,  which  are  public  acts)  that 
the  company  should  do  an  act  which  was  illegal,  contrary  to  pub- 
lic policy  and  the  provisions  of  the  statutes.^  (i) 

^  Norwich  v.  Norfolk  Railway  Co.,  4  Ellis  &  B.  397;  s.  c.  30  Eng.  L.  &  Eq. 
120.  A  contract  by  a  railway  company,  in  consideration  of  the  conveyance  to 
the  company  by  a  natural  person  of  a  certain  piece  of  land  (not  for  any  of  the 
ordinary  uses  of  the  company,  as  defined  in  its  charter,  but  for  purposes  of 
speculation),  to  build  one  of  its  freight  and  passenger  depots  in  a  specified 
place,  is  void,  both  as  ultra  vires,  and  against  public  policy.  Pacific  Railroad 
Co.  V.  Seely,  45  Mo.  212. 

*  Macgregor  v.  Dover  &  Deal  Railway  Co.,  16  Eng.  L.  &  Eq.  180,  in  Ex- 
chequer Chamber;  s.  c.  18  Q.  B.  018.  See  also  East  Anglian  Railway  Co. 
)•.  Eastern  Counties  Railway  Co.,  11  C.  B.  775;  s.  c.  7  Eng.  L.  &  Eq.  505, 
where  the  same  question  in  effect  is  determined.     Supra,  §  16. 

*  Supra,  §  56,  note  3. 

(a)  In  general  a  company  may  not  to  purchase  all  kinds  of  property  may 

sell  its  road  and  franchises.     Middle-  buy  from  anotlier  company  having  a 

.«!ex  Railroad  Co.  r.  Boston  &  Chelsea  right  to  sell   a   road   constructed  on 

Railroad  Co.,  115  Mass.  317.     But  a  that  line.     Branch  i>.  Jesup,  106  U.  S. 

company  having  the  right  to  construct  468. 
a  particular  line  with  general  power         (h)  A   contract    to   supply    rolling 

[*614] 


§  148.]  CONTRACTS   ULTRA    VIRES.  CG3 

3.  And  a  contract  by  wliich  one  railway  ajrrccs  to  j^lvc  up  to 
another  railway  a  i)art  of  its  profits,  in  consideration  of  securiuf; 
a  portion  of  the  profits  of  the  other  company,  is  illegal,  and  ultra 
vires.* 

*4.  The  rule  laid  down  upon  this  subject  ])y  a  distinguished 
English  judge,  on  a  recent  occasion  in  the  House  of  Lords,^  is 
perhaps  as  fair  and  full  a  definition  of  the  doctrine  as  can  be 
made.  "  There  can  be  no  doubt  that  a  corporation  is  fully  capable 
of  binding  itself  by  any  contract  under  its  common  seal  in  Eng- 
land, and  without  it  in  Scotland,  except  where  the  statutes  by 
which  it  is  located  or  regulated  expressly  or  by  necessary  imjilica- 
tion  prohibit  such  contracts  between  the  parties.  Prima  facie  all 
its  contracts  are  valid,  it  lies  on  those  who  impeach  any  contract 
to  make  out  that  it  is  avoided.  Tliis  is  the  doctrine  of  ultra  vires^ 
and  it  is  no  doubt  sound  law,  though  the  application  of  it  to  tlic 
facts  of  each  particular  case  has  not  always  been  satisfactory  to 
my  mind."  Ilis  lordship  here  declares  that  it  would  not  be  ultra 
vires  for  a  comj)any  wishing  to  alter  one  of  its  branches,  and 
about  to  apply  to  parliament  for  authority  to  do  so,  to  enter  into 

*  Shrewsbury  &  Birmingham  Railway  Co.  v.  London  &  Xorthwestern  Rail- 
way Co.,  G  II.  L.  Cas.  113;  s.  c.  29  Law  T.  186.  But  one  company  may 
lawfully  accept  the  lease  of  an  unfiiii.shed  railway  under  a  specified  rent  yearly 
after  the  same  is  finished,  and  may  stipulate  for  the  payment  in  advance  of 
the  rent  for  the  whole  term  for  the  purpose  of  constructing  the  road;  and  this 
will  be  no  infringement  of  the  statute  allowing  the  connection  of  the  two 
roads,  on  condition  that  the  first  company  shall  not  expend  any  portion  of  its 
reseiTed  funds  for  the  construction  of  the  other  road.  This  looks  vcrj'  much 
like  one  company's  building  the  road  of  the  other  out  of  its  own  funds,  surplus 
or  borrowed,  for  the  use  of  such  road  a  certain  number  of  years.  If  so,  it  is 
converting  surplus  into  capital  without  legal  warrant.  The  cajse  is  so  near 
the  dividing  line  between  what  is  and  what  is  not  justifiable  as  not  to  be  of 
much  authority,  for  those  who  desire  to  protect  an  existing  company  against 
expending  its  funds  in  extending  its  line.  It  is  one  of  those  cases  which 
relucts  at  declaring  the  hnnn  fide  acts  of  corporations  ultra  vires,  where  no 
great  harm  to  any  one  is  expected  to  ensue,  and  the  public  ititorest  has  l>oen 
materially  subserved.  Durfee  i^.  Old  Colony  &  Fall  River  Railroad  Co.,  5 
Allen,  '230. 

6  Lord  Wensleydale,  in  Scottish  Northeastern  Railway  Co.  v.  Stewart, 
3  Macq.  Ap.  Cas.  382 ;  s.  c.  5  Jur.  x.  s.  007. 

stock  for  the  use  of  another  company     v.  Great  Eastern  Railway  Co.,  Law 
held  not  ultra  vires.    Attorney  General     Rep.  11  Ch.  D.  419. 

[•C15] 


664  ARRANGEMENTS  BETWEEN   COMPANIES.  [PART  VI. 

a  contract  for  land  wliich  would  be  necessary  for  the  purpose  if 
they  should  obtain  the  act. 

5.  The  question  how  far  a  railway  company,  without  special 
grant  of  power  for  that  purpose,  may  accept  bills  of  exchange,  is 
very  carefully  examined  and  thoroughly  discussed,  both  by  court 
and  counsel,  in  an  English  case.^  (c)  It  seems  to  be  there  con- 
sidered, *  that  unless  the  corporation  is  a  trading  company,  as 
the  Bank  of  England  or  the  East  India  Company,  there  is  no 
presumptive  power  to  accept  bills  of  exchange.  In  the  case  of 
railway  corporations,  created  for  a  special  purpose,  there  is  no 
implied  power  either  to  borrow  money  or  to  issue  or  accept  bills 
of  exchange  for  the  purpose  of  negotiation  in  the  market.  The 
rule  is  thus  stated  by  one  of  the  judges  in  the  case  last  cited, 
speaking  of  trading  corporations.  "  Such  a  corporation  may,  in 
some  cases,  bind  itself  by  promissory  notes  and  bills  of  exchange. 
.  .  .  But  a  corporation  will  not  have  these  extraordinary  powers, 
unless  the  nature  of  the  business  in  which  it  is  engaged  raises  a 
necessary  implication  of  their  existence." 

6.  Contracts  ultra  vires,  entered  into  by  the  directors,  and  which 
are  not  binding  upon  the  company,  cannot  be  specifically  enforced 
against  the  directors,  nor  can  the  directors  be  decreed  by  the 
court  to  make  good  their  representations.'^ 

7.  A  corporation  having  no  power  to  lend,  made  a  loan  to  a 
company  having  no  power  to  borrow.  The  borrowers  were  aware 
of  those  facts.      They  bought  a  canal  with  the  money ;  but  that 

®  Bateman  v.  Mid-Wales  Railway  Co.,  Law  Rep.  1  C.  P.  499;  s.  c.  12  Jur. 
N.  s.  453.  The  language  of  Crompton,  J.,  in  Chanabers  v.  Manchester  &  Mil- 
ford  Railway  Co.,  5  B.  &  S.  588 ;  s.  c.  10  Jur.  n.  s.  700,  referring  to  and  approv- 
ing the  law  as  laid  down  by  Parke,  B.,  in  the  South  Yorkshire  Railway  & 
River  Dun  Co.  v.  Great  Xorthern  Railway  Co.,  seems  to  put  the  question  on 
its  true  basis. 

1  Ellis  V.  Coleman,  25  Barb.  662. 

(c)  A  company  may  upon  sufficient  though  without  special  powers  to  that 

consideration  guarantee  the  bonds  of  end,  may  contract  to  issue  preferred 

another   company.      Low   v.   Central  stock  in  order  to  complete  its  road, 

Pacific  Railroad  Co.,  52  Cal.  53.    But  and  make  such  stock  the  basis  of  the 

may  not   use  its   funds  to   purchase  qualification  of  directors;    and  when 

stock  in  another  company.     Milbank  third  persons  have  acted  on  faith  of  it, 

V.  New  York,  Lake  Erie,  &  Western  the  shareholders  cannot  avoid  it.     It 

Railroad  Co.,  64  How.  Pr.  20;  Elkins  is    not    ultra    vires.       Hazlehurst    v. 

V.  Camden  &  Atlantic  Railroad  Co.,  Savannah  Railroad  Co.,  43  Ga.  605. 
36   N.  J.  Eq.  5.      And  a  company, 
[*616] 


§  148.]  CONTRACTS   ULTRA    VIRES.  005 

*  was  set  aside,  and  tlie  purchase-money  ordered  to  be  refunded. 
The  loanint^  company  sought  a  refunding  of  the  money  loaned  by 
them,  with  the  interest,  out  of  the  refunded  purchase-money.  It 
was  heUl  they  were  entitk'd  to  a  decree  accordingly.^  Ihit  the 
lender  of  money  to  a  company  having  no  power  to  borrow,  cannot 
compel  the  company  to  refund  the  money,  unless  it  has  been  bona 
fide  apj)lied  to  the  purjjoses  of  the  company."  (J) 

8.  Where  part  of  a  contract  only  is  ultra  vires  of  the  company, 
a  court  of  equity  will  restrain  that  portion  only.^'^  Where  there 
is  a  defect  of  capacity  in  the  company  to  do  the  act,  the  power 
cannot  be  created  by  the  express  agreement  of  the  shareholders  ; 
nor  can  it  be  presumed  from  any  extent  of  acquiescence.  I>ut 
where  only  certain  formalities  are  required  to  the  valid  execution 
of  the  act,  as  the  consent  of  a  general  meeting,  that  will  be  pre- 
sumed  from   acquiescence."  (c)      But   where   dissentient   mem- 

8  Ernest  v.  Croysdell,  2  De  G.  F.  &  J.  175;  s.  c.  G  Jur.  x.  s.  710. 
*  In  re  Troup,  "J9  Beav.  353;  Ex  parte  Iloare,  30  Beav.  2J5. 

^<*  Maunsell  v.  Midland  Great  Western  Railway  Co.,  1  Hemm.  &  M.  130; 
s.  c.  9  Jur.  N.  8.  6G0.  It  was  here  held,  that  an  agreement  to  contribute  to  ilio 
parliamentary  deposit  required  on  bills  promoted  by  another  company  xa  ultra 
vires.  So  is  an  agreement  to  take  shares  in  the  future  extension  of  another 
company.  And  so  is  an  agreement  to  make  traffic  regulations  api'licable  to 
future  extensions.  But  no  such  agreement  is  ultra  rires  if  its  validity  is  ex- 
pressly made  dependent  upon  the  sanction  of  pailiament.  Wliere  part  of  an 
entire  arrangement  between  two  companies,  the  parts  of  which  are  dcjwndent 
on  each  other,  is  illegal,  or  ultra  vires,  a  court  of  equity  will  restrain  the  execu- 
tion of  every  portion  of  the  arrangement.  Ilattersley  i;.  Shelburue,  7  Law 
T.  X.  s.  G50. 

"  British  Provident  Life  Insurance  Co.,  9  Jur.  x.  s.  G31. 

((/)  Under  an  authority  to  borrow  Co.,  83  Penn.  St.  100.     And  see  At- 

money  a  company  may  not  issue  irre-  lantic    &    Pacific    Telegraph    Co.    c. 

deemable  bonds  entitling  the  holder  Union  Pacific  Railway  Co..  1  McCrary, 

merely  to  a  share  in  the  profits  after  511.     Tlius.  if  a  company  issue  nego- 

payment  of  certain  dividends.   Taylor  tiable  securities  without  HUtliority,  al- 

V.  Philadelphia  &   Reading  Railroad  though  they  are  void,  even  in  the  hands 

Co.,  7  Fed.  Rep.  386.  of  innocent  holders,  yet  if  tl>e  coni- 

(e)  Where  a  company  enters  into  a  pany  knowingly  permits  performance 

contract  which  is  fully  performed  on  of  the  consideration  which  goes  toward 

the   other  side,    so   that  nothing  re-  legitimate  corjxjrato  purposes,  it  will 

mains  but  for  it  to  pay,  it  cannot  set  bo    estopped    to    deny    its    liability, 

up  that  the  contract  was  ultra  vires.  Peoria  &  Springfield  Railroad  Co.  t. 

Oil  Creek  &  Allegheny  River  Railroad  Thompson,  103  111.  1S7. 
Co.    V.    Pennsylvania  Transportation 

[•GIT] 


6G6  ARRANGEMENTS   BETWEEN   COMPANIES.  [PART   VI. 

bcrs  ^2  were  allowed  to  retire  by  the  resolution  of  a  general  meet- 
ing, it  was  held  the  other  members  could  not  be  allowed  to  ques- 
tion its  regularity  and  validity,  after  an  acquiescence  of  twenty 
years,  although  idtra  vires. 

9.  Directors  of  an  insurance  company  offered  to  pay  losses 
caused  by  the  explosion  of  gunpowder,  although  expressly  ex- 
cepted from  the  risks  assumed  by  the  policy,  at  the  same  time  not 
admitting  any  legal  liability  to  do  so.  On  a  bill  by  a  shareholder 
to  restrain  the  directors  from  doing  so,  it  appearing  that  it  was 
usual  and  advantageous  for  companies  to  do  so,  although  not 
strictly  *  responsible  for  the  loss :  held,  that  this  was  a  mode  of 
carrying  on  the  business  with  which  the  court  could  not  inter- 

fere.iH/) 

10.  This  is  a  most  remarkable  decision,  but  more  remarkable 
for  the  reasons  and  grounds  upon  which  it  is  placed.  The  fact 
that  the  unlawful  payments  proposed  to  be  made  were  prudent 
and  politic,  is  nothing  more  than  may  be  urged  in  favor  of  all 
proposed  illegal  diversion  of  the  funds  of  a  company.  It  is 
always  proposed  thereby  to  advance  the  interests  of  the  company, 
and  consequently  the  dividends  to  the  shareholders.  It  is  impos- 
sible to  suppose  that  any  such  principle  can  ultimately  maintain 
its  ground  in  the  English  courts  of  equity. 

11.  The  subsequent  cases  seem  to  manifest  the  feeling  that  all 
secure  ground  to  rest  upon  is  taken  from  under  them.  It  is  said 
in  one  case  ^*  that  in  matters  strictly  relating  to  the  internal 
management  of  the  company,  even  though  not  strictly  within  the 
terms  of  the  constitution  of  the  company,  the  court  will  not  inter- 
fere. But  it  is  here  added,  if  the  matters  complained  of  are 
plainly  beyond  the  powers  of  the  company,  and  are  inconsistent 
with  the  objects  for  which  the  company  was  constituted,  the  court 
will  interfere,  at  the  instance  of  the  minority,  to  prevent  the  act 

12  In  re  Brotherhood,  31  Beav.  3G5.  A  restriction  upon  the  liability  of  the 
shareholders  for  bills  drawn  by  the  company  will  not  affect  the  responsibility 
of  the  company.     State  Fire  Insurance  Co.,  8  Law  T.  n.  s.  146. 

1'  Taunton  v.  Royal  Insurance  Co.,  2  Hemm.  &  M.  135;  s.  c.  10  Jur.  N.  s. 
291. 

"  Gregory  v.  Patchett,  33  Beav.  595;  s.  c.  10  Jur.  n.  s.  1118. 

(/)  Recovery    by    the    lender    of    be  enjoined  at  suit  of  a  shareholder, 
money  borrowed  to  enable  the  com-     Bradley  v.  BaUard,  55  111.  413. 
pany  to  do  an  act  ultra  vires,  will  not 
[*618] 


§  148.]  CONTRACTS    ULTRA    VIRES.  GOT 

complained  of  from  being  carried  out.  If  tills  is  intellij^nhlo  to 
others,  or  reconcilable  with  <^njod  sen.se  and  good  law,  it  certainly 
passes  our  c(unpivliension,  and  \vc  can  only  .say  that  we  should 
not  expect  it  to  be  long  maintained  anywhere.  It  is  ncAhing 
more  or  less  than  paying  black-mail  to  buy  peace,  and  if  public 
companies  can  do  that  with  funds  they  hold  in  trust,  it  may  be  as 
well  for  courts  of  equity  not  to  attempt  to  define  what  they  may 
or  may  not  do.^" 

^5  In  Ohio  &  Mississippi  Railroad  Co.  v.  Indianapolis  &  Cincinnati  Railroad 
Co.,  5  Am.  Law  Reg.  n.  s.  7u3,  a  question  arose  as  to  the  riglits  of  railway 
corporations  in  one  state  to  enter  into  permanent  arrangements  with  similar 
corporations  in  other  states.  The  plaintiff,  being  authorized  to  construct  and 
operate  a  railway  from  Cincinnati  to  Viucennes,  and  the  defendant,  being 
authorized  to  construct  and  operate  a  railway  of  a  different  gauge  from  Indian- 
apolis to  Lawrenceburg,  entered  into  a  contract  whereby  the  defendant,  in 
consideration  of  being  allowed  to  lay  a  third  rail  on  the  road  of  the  plaintiff, 
and  of  the  agreement  of  the  plaintiff  to  furnish  motive  power  for  hauling  tlie 
cars  of  the  defendant  on  that  part  of  the  road,  agreed,  among  other  things,  to 
lend  to  the  plaintiff  $30,000,  for  the  purpo.se  of  erecting  a  depot  for  the  plaintiff 
in  Cincinnati,  to  become  the  property  of  the  plaintiff  at  the  expiration  of  the 
contract;  to  form  no  connections  at  or  beyond  Lawrenceburg  prejudicial  to  the 
plaintiff;  and  to  give  the  plaintiff  exclusive  control  of  the  employes  of  the  de- 
fendant while  on  the  road  of  the  plaintiff.  A  foreign  corporation  having  no 
charter  from  the  state  authorizing  it  to  construct  and  operate  a  railway  in  the 
state,  could  not,  by  a  transfer  of  a  portion  of  a  railway  already  constructed  in 
the  state  by  legal  authority,  acquire  a  right  to  use  and  operate  such  railway 
within  the  state.  It  was  held  also  on  the  construction  of  the  charters  of  the 
plaintiff  and  defendant,  that  such  contract  was  beyond  the  competenry  of  the 
contracting  parties,  and  void.  The  contract  also  provided,  that  the  defendant 
should  have  the  use  of  a  depot  and  certain  grounds  in  Cincinnati  for  unloading 
goods  and  lumber,  for  thirty  years.  It  was  held,  that  this  created  an  easement 
in  the  land,  and  was,  in  connection  with  the  laying  and  keeping  of  the  third 
rail,  in  substance  a  lease,  which  the  plaintiff  had  no  authority  to  make,  and  that 
it,  being  for  more  than  three  years,  was  also  invalid  under  the  statute  of  frauds, 
for  the  *  want  of  legal  acknowledgment;  also,  that  the  defendant  having  as  a 
foreign  corporation  no  right  to  accept  a  lease  of  a  railway  in  Oiiio,  the  plain- 
tiff could  not  have  had  a  specific  performance  of  the  agreement,  the  remediea 
of  the  parties  not  being  mutual.  There  seems  to  be  no  good  ground  to  ques- 
tion the  soundness  of  the  foregoing  opinion ;  but  the  case  seems  to  exhibit  in 
a  strong  light  the  embarrassments  constantly  resulting  from  having  railway 
corporations  restricted  in  their  corjwrate  functions  to  the  limits  of  stat^  lines. 
It  would  certainly  seem  that  there  is  far  more  necessity  and  propriety  in  hav- 
ing all  the  railway  corporations  in  the  country  possess  a  national  character, 
than  there  is  in  giving  the  same  character  to  all  the  banks  of  the  country. 
There  is  every  reason  to  regard  railways  as  national  institutions,  in  almost 

[•619,  •G20J 


668  AKRANGEMENTS   BETWEEN    COMPANIES.  [PART   VI. 

SECTION  VIII. 

Companies  exonerated  from  Contracts  hy  Act  of  the  Legislature. 

§  149.  It  seems  to  be  conceded  that  a  railway  company  may 
plead  a  subsequent  act  of  the  legislature,  in  bar  of  the  perform- 
ance of  their  covenant  or  contract.  But  it  will  afford  no  bar, 
*  unless  the  act  either  expressly  or  by  clear  implication  renders 
the  duty  of  the  contract  unlawful  or  comes  in  conflict  with  it.^ 

every  sense  in  which  they  possess  a  public  character,  or  perform  public  service, 
\vith  the  single  exception  of  intercommunication,  which  is  mainly  of  local 
and  state  concern.  They  are  such  as  an  instrument  in  time  of  war,  and  as  a 
means  of  postal  communication;  and  the  right  of  Congress  to  regulate  commerce 
between  the  different  states,  would  give  the  power  to  control,  within  certain 
limits,  the  transmission  of  freight  and  passengers  from  one  state  to  another. 
And  this  might  enable  the  national  authority  to  remedy  existing  evils  on  long 
lines,  to  some  extent.  But  what  is  needed  seems  to  be  the  subjecting  of  the 
entire  railway  system,  throughout  the  country,  to  a  single,  salutary,  prudent, 
and,  at  the  same  time,  energetic  control.  It  seems  questionable  how  far  this 
can  be  effected,  as  a  regulation  of  commerce ;  but  that  it  must,  in  some  way, 
be  obtained  by  the  national  government  seems  now  pretty  generally  conceded 
by  those  who  believe  that  any  such  control  is  requisite  for  the  protection  of 
public  or  i)rivate  interests,  against  the  interest  of  private  gain,  through  the 
force  of  an  entire  monopoly  of  intercommunication.  True,  the  most  engross- 
ing monopoly,  if  wisely  conducted,  will  not  wantonly  outrage  the  public  senti- 
ment of  justice;  but  where  the  temptation  is  so  great,  it  is  always  desirable  to 
have  some  redress,  which,  in  the  language  of  Magna  Carta,  is  free,  cheap,  and 
open  to  all;  redress  which  need  not  be  bought,  which  will  not  be  delayed,  and 
which  cannot  be  denied.  Any  such  redress  from  the  force  of  state  control 
seems  now  nearly,  if  not  quite,  hopeless.  Whether  the  remedy  through  the 
national  tribunals  is  more  hopeful,  is  the  problem  hereafter  to  be  solved. 

1  Wynn  v.  Shropshire  Union  Railway  &  Canal  Co.,  5  Exch.  420;  Stevens 
V.  South  Devon  Railway  Co.,  13  Beav.  48;  s.  c.  12  Eng.  L.  &  Eq.  229.  But 
where  one  was  induced  to  give  lands  to  a  railway  company,  or  subscribe  for 
stock,  and  the  essential  inducement  to  make  the  contract  was  that  the  com- 
pany should  construct  its  road  within  some  definite  time,  the  extension  of  time 
for  the  construction  of  tlie  road,  by  act  of  the  legislature,  will  not  exonerate 
the  company  from  its  obligation  to  such  person.  Henderson  v.  Railway  Co., 
17  Tex.  560. 
[*621] 


§  150.]         WIDTU    OF   GAUGE.  —  JUNXTION    OF    UAILWAYS. 


CG'J 


SECTION    IX. 


Width  of  Gauge.  —  Junction  with  other  Hoads. 


1.  Charter  rcquirinff  broad  gauge  does 

not  prohibit  mixed  gauge. 

2.  Permission   to   unite  with  other  road 

signifies  a  road  de  facto. 

3.  Equity  will  sometimes  enjoin  company 

from  changing  gauge. 


4.  Contract  to  make  gauge  of  the  com- 

panies the  same,  allliougli  contrary 
to  law  of  state,  at  its  date,  may  be 
legalized  by  statute. 

5.  Import  and  construction  of  tlie  term 

"  railway  connection." 


§  150.  1.  Where  the  company's  special  act  required  them  to  lay 
down  a  railway  of  such  gauge  and  construction  as  to  be  worked 
in  connection  with  another  comi)any  named  (the  broad  gauge),  a 
court  of  equity  declined  to  interfere,  by  injunction,  when  the  com- 
pany were  laying  down  part  of  the  line  with  double  tracks  of  tlic 
mixed  gauge,  there  being  no  probibition  in  the  act  again.st  such  a 
construction,  the  broad  gauge  being  all  which  was  required  by 
the  act.i 

2.  Where  the  act  of  incorporation  gave  the  company  the  right 
to  construct  a  road  in  a  particular  line,  and  also  reciuired  tlicm  to 
purchase  a  former  railway  along  the  same  route,  and  gave  them 
the  right  to  connect  "  their  road  with  any  road  legally  authorized 
to  come  within  the  limits  of  the  city  of  Erie,"  it  was  held  that 
this  right  extended  equally  to  the  road  purchased  or  built  by 
them,  and  that  they  had  the  right  to  connect  with  any  other  rail- 
way in  the  actual  use  of  another  company  in  Erie,  without 
inquiry  whether  such  company  were  in  the  legal  use  of  their  fran- 
chises at  the  time  or  not.  That  is  a  (piestion  whirh  cannot  bo 
inquired  into  in  this  collateral  manner.^ 

*  3.  Where  two  railway  comjianies  agree  to  operate  their  roads 
in  connection,  between  certain  points,  if  one  of  tlie  companies 
changes  its  gauge,  so  as  to  break  up  the  connection  contem]>la(fd, 
an  injunction  will  be  granted  to  enforce  the  contract.^ 

^  Great  Western  Railway  Co.  v.  Oxftuil,  Worcester,  &  Wolverhampton 
Railway  Co.,  5  De  G.  &  S.  437;  8.  c.  10  Enp.  L.  &  Eq.  2f)7. 

2  Cleveland,  Painsville,  &  Ashtabula  Railway  Co.  v.  Erie.  27  Ponn.  St.  .380. 

'  Columbus,  Piqua,  &  Indiana  Railroad  Co.  v.  Indianajx^lis  &  Bellefoutaine 
Railroad  Co.,  5  McLean,  450. 

[•622] 


670  ARRANGEMENTS  BETWEEN   COMPANIES.  [PART   VI. 

4.  A  contract  entered  into  by  railway  companies  to  make  the 
gauge  of  both  the  companies  the  same,  is  not  illegal,  although  this 
be  contrary  to  the  law  of  one  of  the  states,  if  the  contract  appear 
to  have  been  made  with  reference  to  an  alteration  of  the  powers 
of  the  company,  in  that  respect,  and  that  such  alteration  was  pro- 
cured before  any  part  of  the  track  was  laid.^ 

6.  The  subject  of  "  railway  connection "  and  the  import  of 
those  terms,  is  discussed  in  a  case  in  Pennsylvania,^  and  it  is 
there  held  that  the  terms,  when  used  without  qualification,  must 
mean,  either  such  a  union  of  tracks  as  to  admit  the  passage  of 
cars  from  one  road  to  the  other  ;  or  else  such  an  intersection,  as 
to  admit  of  the  convenient  interchange  of  freight  and  passengers 
at  the  point  of  intersection.  One  would  suppose  the  latter  must 
always  be  implied,  by  the  use  of  such  terms,  at  the  very  least ; 
and  that  where  the  roads  are  of  the  same  gauge,  so  as  to  admit 
of  a  running  connection,  such  connection  would  naturally  be 
intended  by  the  use  of  these  terms. 

*  Philadelphia  &  Erie  Railroad  Co.  v.  Atlantic  &  Great  "Western  Railroad 
Co.,  53  Penn.  St.  20. 

[*622] 


PART  YII. 

THE  LAW  OF  MANDAMUS  AND  OTHER  PREROGATIVE 
REMEDIES  AS  AITLIED   TO  RAILWAYS. 


PART  YII. 

THE  LAW  OF  MANDAMUS  AND  OTHER  PREROGATIVE 
REMEDIES  AS   APPLIED   TO   RAILWAYS. 


♦CHAPTER    XXIIL 

MANDAMUS. 

SECTION  L 


General  Rules  of  Law  governing  this  Rcmedg. 


1.  Supplementary    remedy.      Available 

where  other  remedy  is  wantinjj. 

2.  Mode  of  procedure.     Matter  of  discre- 

tion.    Alternative  writ. 

3.  Proceedings    in  American   courts,   in 

general. 

4.  Amendment  of  application  not  allowed 

in  England. 
6.  Simplified  proceedings  under  common 
law.     Trocedure  Act. 


6.  Trial  of  the  truth  of  the  return  to  the 

alternative  man<latnus. 

7.  Costs  rest  in  the  discretion  of  court. 

8.  Mode  of  service.     Delivery  of  origi- 

nal, &c. 

9.  Mandamus  had  under  late  English  stat- 

utes, by  indorsement  of  claim   on 
writ  in  ordinary  action. 


§  151.  1.  Tun  olTicc  of  the  writ  of  mandamus  is  very  cxtcn.sivc. 
It  is  the  supplementary  remedy  where  all  others  fail.  Lord 
Mansfield  says,^  "  It  was  introduced  to  prevent  disorder,  from  a 
failure  of  justice  and  defect  of  police.  Therefore  it  ought  to  Ikj 
used  upon  all  occasions  where  the  law  has  establi.slicd  no  specific 
remedy,  and  where  in  justice  and  good  government  there  ought 
to  be  one."     "  If  there  be  a  right  and  no  other  specific  remedy 

1  Rex  V.  Barker,  3  Bur.  iL'Go.  See  Woodstock  r.  Callup.  28  Vt.  587;  Tco- 
pie  V.  Head,  2.3  III.  ;!2.j;  Draper  i-.  Xuteware,  7  Cal.  27t>.  The  same  princi- 
ples are  declared  by  Lord  ELi,ENnonoLT.n.  in  King  r.  Archbishop  of  Canter- 
bury, 8  East,  213,  219;  6  A.  &  E.  321.  And  where  there  i.s  any  other  equally 
efBcacious  remedy  this  writ  will  not  lie.  Bush  r.  Beavan,  1  II.  &  C  500;  82 
Law  J.  Exch.  51;  infra,  §  IGl,  pi.  3. 

VOL.  I. -43  [•G23] 


674  MANDAMUS.  [PART   VII. 

this  should  not  be  denied."  ^  (a)  The  general  rules  applicable  to 
the  use,  and  the  mode  of  obtaining  this  writ,  are  sufficiently  dis- 
cussed in  the  digests,  abridgments,  and  elementary  works,  under 
this  title.^ 

*  2.  The  mode  of  proceeding  in  ol^taining  the  writ  is  controlled 
very  much  by  statute  in  England  at  the  present  time,  and  in  most 
of  the  American  states.  There  are  some  few  points  which  are  of 
general  application.  (1)  The  power  of  granting  the  original 
prerogative  writ  of  mandamus  in  England  was  confined  to  the 
Court  of  King's  Bench ,^  and  in  most  of  the  American  states  it  is 
given,  by  statute,  to  the  highest  court  of  law  of  general  jurisdic- 

2  Commonwealth  v.  Pittsburg,  34  Penn.  St.  49G;  Fremont  v.  Crippen,  10 
Cal.  211.  In  this  last  case  it  was  held  that  mandamus  would  lie  to  compel 
the  sheriff  to  execute  a  writ  of  possession,  although  there  might  be  either  a 
civil  action  or  a  criminal  prosecution  against  him  for  the  refusal,  since  neither 
of  these  remedies  w^ould  do  full  justice  to  the  complainant. 

3  12  Petersd.  Ab.  438;  6  Bac.  Ab.  tit.  Mandamus,  309,  418;  3  Bl.  Com,  110, 
264;  1  Kent  Com.  322;  Curtis  Dig.  333.'  And  that  the  party  may  have 
some  remedy  in  equity,  will  not  preclude  this  remedy.  But  see  infra.  Nor 
that  an  indictment  will  lie.  Infra,  §  161.  And  it  is  no  bar  to  this  remedy 
that  the  party  might  by  statute  build  the  work  at  the  expense  of  the  other 
party,  by  order  of  a  justice,  llegina  v.  Xorwich  Railway  Co.,  4  Railw.  Cas. 
112.  The  legislature  empowered  the  board  of  supervisors  of  the  county  of 
Xew  York  to  cause  to  be  raised  and  collected  a  sum  not  exceeding  $80,000  to 
meet  and  pay  whatever  sum  up  to  that  amount  might  be  found  due  to  the  con- 
tractors with  the  commissioners  of  records,  and  authorized  the  comptroller  to 
pay  "said  amount  when  it  should  be  judicially  determined."  The  contractor 
not  having  the  power  to  bring  action  and  obtain  judgment  against  the  super- 
visors in  the  regular  manner,  it  was  held  that  this  was  not  the  intention  of  the 
legislature,  and  that,  in  the  absence  of  any  specific  directions  in  the  act  as  to 
how  this  judicial  determination  should  be  obtained,  it  would  be  unreasonable 
to  infer  that  any  other  remedy  was  intended  than  that  attainable  by  manda- 
mus; and  that  application  for  mandamus  was  the  proper  remedy  for  the  con- 
tractors, on  the  refusal  of  the  comptroller  to  pay  them  the  amount  certified  by 
the  commissioners  to  be  due  them.  People  v.  Haws,  34  Barb.  69.  And  see, 
to  the  same  point,  Regina  v.  Southampton,  1  Ellis,  B.  &  S.  5;  s.  c  7  Jur.  n.  s. 
990;  30  Law  J.  Q.  B.  244.  And  where  a  new  right  has  been  created  by  act  of 
parliament,  the  proper  mode  of  enforcing  it  is  by  mandamus  at  common  law. 
Simpson  v.  Scottish  Union  Fire  &  Life  Insurance  Co.,  9  Jur.  x.  s.  711;  s.  c. 
32  Law  J.  Ch.  329;  s.  c.  1  Hemm.  &  M.  618.  Commonwealth  v.  Pittsburg, 
31  I'enn.  St.  496. 

(a)  The  writ  will  not  issue  where     South  &  North  Alabama  Railroad  Co. , 
full  relief  may  be  had  by  appeal  or     65  Ala.  599. 
writ  of  error,  or  otherwise.    Ex  parte 

[*624] 


§  151.]      GENERAL   RULES   OF   LAW   GOVERNLNG    THIS   REMEDY.         CT5 

tion.3  This  prcrofrativc  writ  seems  anciently  to  have  Imm-h  i.s>u«  «i 
to  inferior  jurisdictions  by  the  Court  of  Chancery  in  KiiL'hmd,  hut 
not  to  the  Kini^'s  Uencli.^  Hiis  writ  is  not  dcmunduhle  a.s  of 
right,  but  is  awarded  in  the  discretion  of  the  court."^  (2)  The 
form  of  a|»j)lication  is  either  liy  moti(jn  in  court,  and  the  j»r«jdiic- 
tion  of  afiidavits  in  su]>i)ort  of  the  <?round  of  the  motion,  in  which 
case,  if  the  motion  prevails,  a  rule  to  show  cause  why  tlic  writ 
should  not  issue,  or  an  alternative  mandamus  issues  *  ujion  the 
ex  parte  hearing,  and  the  definitive  hearing  is  had  upon  the  return 
of  the  rule,  or  the  return  to  the  alternative  writ. 

3.  The  more  common  practice  in  the  American  courts  (wliich 
often  hold  but  one  or  two  short  sessions  annually  in  a  county, 
and  where,  by  consequence,  such  formal  proceedings  would  be 
attended  with  embarrassing  delays)  is,  by  formal  petition,  alleg- 
ing in  detail  the  grounds  of  the  application,  wliich  is  served  upon 
the  opposite  party  and  all  parties  supposed  to  have  an  interest  in 
the  questions  involved,  a  suflicient  time  before  the  term  to  give 
an  opportunity  for  taking  the  testimony  ujion  notice  ;  and  upon 
the  return  of  the  petition,  the  case  is  heard  upon  its  general  mer- 
its ;  and  in  either  form,  if  the  application  prevails,  a  pcrenqH 
tory  mandamus  issues,  the  only  proper  return  to  which  is  a 
certificate  of  compliance  with  its  requisitions,  without  further  ex- 
cuse or  delay .^  (i) 

*  Rioters'  Case,  1  Vernon,  175;  Angell  &  Ames  Corp.  §  G97.  But  see  Rex 
V.  Severn  &  Wye  Railway  Co.,  2  B.  &  Aid.  GIG;  Rex  v.  Dean  Inclosure,  2  M. 
&  S.  80;  Rex  v.  Jeyes,  3  A.  &  E.  41G. 

6  Rex  V.  Hisliopof  London,  1  T.  R.  .'^:}1.  :^3!;  Rex  r.  Bi.shop  of  Chester.  1 
T.  R.  390,  40t,425;  2  T.  R.  330;  People  r.  Public  Accounts  Auditor,  33  III. 
9;  s.  c.  3  Am.  Law  Reg.  n.  b.  332.  And  the  court  will  not  entertain  juris- 
diction unless  substantial  interests  are  involved.     Id. 

6  Ilodijes  Railw.  010-014.  It  is  indispensable  first  to  demand  of  the  party 
against  whom  the  application  is  to  be  made,  a  performance  of  the  duty,  and 
the  party  must,  it  would  .seem,  be  made  awan-  of  th."  pur|Hi.so  of  the  demand. 
King  I'.  Wilts  &  Berks  Canal  Xavijjation,  3  A.  &  E.  477;  King  r.  BreokncKrk 
&  Abergavenny  Canal  Navigation,  3  A.  &  E.  217;  People  v.  Uomort,  IS  Cal. 
89.     The  refusal  must  be  of  the  thing  demanded,  and  not  of  the  right  merely. 

{h)  At  common  law  error  docs  not  44  Conn.  37G.  Nor  will  an  apjieal  lie 
lie  from  an  allowance  of  the  writ,  after  the  api>ollant  ha.s  obtained  an 
such  allowance  being  a  mere  award  extension  of  time  to  comply  with  the 
and  not  a  formal  judgment.  New  writ.  People  r.  Hoolioster  &  State 
Haven  &  Northampton  Co.   v.   State,     Line  Railroad  Co..  1.')  Hun.  1S8. 

[T.-a] 


676  MANDAMU3.  [PART   VII. 

*  4.  The  general  rule  of  the  English  courts  seems  to  be,  that  if 
the  first  application  is  denied  on  account  of  defects  in  the  affida- 

KinjT  V.  Xorthleach  &  Witney  Roads,  5  B.  &  Ad.  978.  The  refusal  must  be 
direct  and  unqualified,  but  may  be  made  as  effectual  by  silence  as  by  words 
or  acts,  but  the  party  should  understand  that  he  is  expected  to  perform  the 
recjuired  duty,  on  pain  of  legal  redress  without  further  delay.  Queen  v.  Nor- 
wich &  Brandon  Railway  Co..,  4  Railw.  Cas.  112;  Queen  v.  Bristol  &  Exeter 
Railway  Co.,  4  Q.  B.  102.  But  this  should  be  taken  as  a  preliminary  ques- 
tion, according  to  the  English  practice.  Queen  v.  Eastern  Counties  Railway 
Co.,  10  A.  &  E.  531.  But  in  Commonwealth  v.  Commissioners,  37  Penn.  St. 
237,  a  demand  was  held  unnecessary  in  the  case  of  public  officers  neglecting 
to  do  their  duty.  Conditions  precedent  must  be  shown  to  have  been  per- 
formed. But  the  mere  requisition  of  an  act  of  parliament  that  parties  claim- 
ing damages,  by  reason  of  a  railway  company's  works,  shall  enter  into  a  bond 
to  pi'osecute  their  complaint  and  pay  their  proportion  of  the  costs,  before  the 
company  should  be  obliged  to  issue  a  warrant  to  summon  a  jury,  and  if  not  so 
done,  the  company  might  give  notice,  requiring  the  same  to  be  done  before 
commencing  the  inquiry,  was  held  not  to  be  a  condition  precedent,  unless  re- 
quired by  the  company.  Queen  v.  North  Union  Railway  Co.,  1  Railway  Cas. 
729.  And  where  an  umpire  failed  to  make  an  award,  it  was  held  that  the 
company  might  be  compelled  by  mandamus  to  issue  a  warrant  for  the  sheriff 
to  assess  the  compensation,  and  no  formal  demand  was  necessary.  Hodges 
Railw.  642,  and  note;  In  re  South  Yorkshire  &  Goole  Railway  Co.,  IS  Law 
J.  Q.  B.  53.  A  return  stating  an  excuse  for  non-compliance  with  a  peremp- 
tory writ  of  mandamus,  is  not  admissible.  Regina  v.  Ledgard,  1  Q.  B.  GIO. 
Application  by  the  prosecutor  for  leave  to  withdraw  his  plea  and  argue  the 
case  on  the  return  refused.  Queen  v.  York,  3  Q.  B.  550;  Ex  parte  Strong,  20 
Pick.  484.  It  is  the  practice  for  different  persons,  in  the  same  or  similar 
situation,  to  unite  in  the  same  application  for  a  mandamus,  and  it  is  said  but 
one  writ  can  issue  in  such  a  case.  Rex  v.  jNIontacute,  1  W.  Bl.  60;  Rex  v. 
Kingston,  1  Str.  578  (note  1);  Scott  v.  Morgan,  8  Dowl.  P.  C.  328.  But  it 
seems  to  be  considered  that  where  the  rights  are  distinct  and  wholly  indepen- 
dent, one  writ  will  not  be  awarded,  but  several,  and  therefore  the  application 
should  be  several.  Regina  v.  Chester,  5  Mod.  11 ;  Andover's  Case,  2  Salk.  433; 
Smith  V.  Erb,  4  Gill,  437;  State  v.  Chester,  5  Ilalst.  292.  And  the  petitioner 
for  a  mandamus  must  set  forth  clearly  his  interest  in  the  matter  which  he  pre- 
sents as  the  ground  of  his  application.  Ex  parte  Fleming,  2  Wal.  759.  But 
several  connected  matters  which  are  not  repugnant,  may  be  included  byway 
of  defence  in  the  return.  Regina  v.  Norwich,  2  Salk.  436;  Wright  v.  Fawcett, 
4  Bur.  2041;  Rex  v.  Taunton  Churchwardens,  1  Cowp.  413.  Upon  a  manda- 
mus to  restore  a  corporate  officer  to  his  functions,  the  return  should  specify 
the  grounds  of  the  amotion.  Commonwealth  v.  Philadelphia,  6  Serg.  &  R. 
4G9,  unless  the  officer  were  removable  on  the  mere  motion  of  the  corporation. 
Rex  V.  Thame,  1  Str.  115.  It  is  not  a  sufficient  reason  for  setting  aside  a  per- 
emptory mandamus  that  a  previous  alternative  writ  had  not  issued.  Knox 
County  V.  Aspiuwall,  24  How.  376. 

[*62G] 


§   lol.]       GENERAL    UULES    OF    LAW    (JOVEIlNINfJ    TIILS    UKMKItV.         »;T7 

vits,  not  to  permit  a  socond  a|)iilir:itiou  to  bo  made  ;  and  tli<;  rule 
extends  to  other  writs,  resting  m  tlic  discretion  of  the  eoiirt.'^ 

5.  Jiul  (lie  Common-law  Procedure  Acts  in  Knjrland  1^.02, 
1854,  a])j)]y  to  tliis  class  of  writs,  and  have  essentially  simitlilied 
the  proceed  in, ITS,  and  rendered  them  more  conformable  to  reason 
and  justice  than  in  some  of  the  American  courts  even,"  the  rule 
for  *  the  issuinii;  of  the  alternative  writ  bein^'  now,  in  all  cases, 
made  absolute  in  the  first  instance,  and  the  wliole  hearing'  had 
upon  the  return,  which  in  our  practice  is  still  further  simplified 
by  admitting  the  party  to  make  answer  to  the  petition,  alleging 
the  grounds  of  his  refusal,  which  are  tried  at  once/-' 

'  Queen  v.  Manchester  &  Leeds  Railway  Co.,  8  A.  &  E.  413.  And  the  same 
rule  obtains  where  the  first  writ  is  denied  because  no  sufficient  demand  had 
been  made,  and  a  subsequent  demand  is  made.  Ex  parte  Thompson.  C  Q.  H. 
721.  Hut  it  is  apprehended  no  such  rule  of  practice  could  be  enforced  in  this 
country,  and  very  few,  we  think,  would  regard  it  as  desirable.  It  seems  to 
be  relaxing  in  England,  where  the  alteration  of  the  affidavits  is  mere  form. 
Regina  v.  Great  Western  Railway  Co.,  5  Q.  B.  597,  001;  Regina  v.  Exst  Lan- 
cashire Railway  Co  ,  .0  Q  B.  980.  And  in  Regina  i-.  Derbyshire,  Staffordshire. 
&  Worcestershire  Railway  Co.,  18  Jm-.  1054;  s.  c.  2C,  Eng.  L.  &  Eq.  101.  the 
writ  was  amended,  as  to  the  name  of  the  company.  Regina  r.  Eastern  Coun- 
ties Railway  Co.,  2  Railw.  Cas.  830,  amendmcMt  allowed.  Regina  r.  Justices 
of  Warwick-shire,  5  Dowl.  P.  C.  382;  Regina  c.  Jones,  8  Dowl.  P.  C.  307; 
Shaw  V.  Perkins,  1  Dowl.  P.  C.  N.  s.  306;  Regina  v.  Pickles,  3  Q.  B.  590,  note; 
State  V.  Hastings,  10  Wis.  518,  525. 

*  And  by  statute  23  &  24  Vict.  c.  120,  §  32,  costs  are  to  be  allowed  against 
the  defendant  where  an  absolute  writ  is  granted,  unless  otherwise  specially 
directed  by  the  courts. 

9  Walter  v.  Belding,  24  Vt.  658;  Ex  parte  Rogers,  7  Cow.  520.  In  thi.< 
country  the  statute  of  9  Anne,  allowing  the  prosecutor  to  traverse  the  return 
to  the  writ  or  the  answer  to  the  petition,  and  for  the  court  to  determine  the 
truth,  either  on  affiilavit  or  by  the  verdict  of  a  jury,  in  its  discretion,  ha.s  been 
pretty  extensively  adopted,  either  in  practice  or  by  statute.  People  r.  Beebc, 
1  Harb.  379;  People  r.  Ilud.son  Con)ini.>*sioner3,  6  Wend.  5.j0;  .Smith  r.  Com- 
monwealtii,  41  Penn.  St.  335.  Where  the  ca.se  is  fully  heard  on  the  petition 
or  rule  to  show  cause,  and  there  is  no  dispute  in  regard  to  the  facts,  the  court 
will  not  delay,  for  the  issuing  of  the  alternative  writ  and  the  return  thereto,  but 
will  in  the  first  instance  issue  the  peremptory  mandamus.  /ij/>ar/^  Jennings, 
6  Cow.  518;  People  v.  Throop.  12  Wend.  183.  The  rule  for  the  peremptory 
mandamus  is  sometimes,  in  the  first  instance,  made  nisi,  to  allow  the  n'-sjond- 
ents  to  consult,  if  they  will  comply  with  the  requirements  of  the  judgment. 
AValter  v.  Belding,  2t  Vt.  058.  Or  sometimes  this  is  done  to  allow  the  partie« 
to  arrange  the  matter,  or  the  court  to  consider  the  case.  Rex  r.  Tapponden, 
3  Eiist,  ISO.     The  court  has  such  control  over  its  own  judgmentj».  that,  if  a 

[•02TJ 


G78  MANDAMUS.  [PART   VII. 

6.  If  falsehood  is  alleged  in  the  return  ro  the  alternative 
mandamus,  it  was  the  practice  at  common  law  to  drive  tlie  party 
to  his  action  for  a  false  return.  But  by  statute  in  England, 
and  generally  by  practice  in  this  country,  the  question  is  tried  in 
the  *  court  issuing  the  writ,  and  the  remedy  there  applied,  dam- 
ages and  costs  being  given  in  the  discretion  of  the  court,  and  exe- 
cution enforced. 

7.  Costs  in  all  the  proceedings  for  mandamus  rest  in  the  dis- 
cretion of  the  court,  unless  controlled  by  statute.  By  the  English 
practice  it  is  common  to  award  costs  where  the  application  is  de- 
nied, but  not  always  where  it  prevails.^^  The  more  general  and 
the  more  equitable  rule  in  regard  to  costs,  in  proceedings  where 
the  court  have  a  discretion  in  that  respect,  is  to  allow  costs  to  the 
prevailing  party,  unless  there  is  some  special  reason  for  denying 
them.^i 

peremptory  writ  of  mandamus  be  unfairly  obtained,  it  will  be  set  aside  on 
motion.  People  v.  Everett,  1  Caines,  8.  Courts  enforce  compliance  with  the 
peremptory  writ  by  attachment,  as  also  a  return  to  the  alternative  writ,  with- 
out requiring  the  issue  of  an  alias  and  pluries,  as  in  the  early  English  practice. 
The  cases  are  not  altogether  agreed,  whether  defects  in  the  writ  are  cured  by 
admissions  in  the  return,  but  on  general  principles  of  pleading  it  would  seem 
that  they  are.  King  v.  Coopers,  7  T.  R.  548.  But  see  Regina  v.  Hopkins, 
1  Q.  B.  161.  But  where  an  alternative  mandamus  is  issued,  and  the  defend- 
ants make  their  return,  and  the  relators,  instead  of  demurring,  take  issue  on 
the  material  allegations  in  the  return,  they  thereby  admit  that,  on  its  face, 
the  return  is  a  sufficient  answer  to  the  case  made  by  the  alternative  writ.  And 
if  no  material  fact  is  disproved  on  the  trial,  the  defendants  will  be  entitled  to 
a  verdict  in  their  favor.  People  v.  Finger,  24  Barb.  341.  The  return  should 
set  forth  an  available  justification  for  defendant's  refusal  to  do  the  act  sought 
to  be  enforced,  and  it  may  allege  different  independent  facts  as  furnishing 
such  justification. 

1°  Regina  v.  Bridgenorth,  10  A.  &  E  66;  Regina  v.  Eastern  Counties  Railway 
Co.,  2  Q.  B.  578,  579,  and  cases  cited  by  counsel.  Regina  v.  East  Anglian  Rail- 
way Co.,  2  Ellis  &  B.  475;  s.  c.  22  Eng.  L.  &  Eq.  274.  Statute  1  Wm.  4, 
c.  21,  §  6,  makes  costs  discretionary  with  the  courts.  Statute  23  &  24  Vict. 
c.  126,  §  132.  Regina  v.  St.  Saviour,  7  A.  &  E.  925.  See  Regina  ».  Brighton 
&  South  Coast  Railway  Co.,  10  Law  T.  x.  s.  496. 

11  Regina  v.  Thames  &  Isis  Commissioners,  8  A.  &  E.  901,  905;  5  A.  &  E. 
804;  Regina  v.  Fall,  1  Q.  B.  636;  Regina  v.  Justices,  6  Eng.  L.  &  Eq.  267,  unless 
strong  reasons  for  denying  costs  exist;  1  Q.  B.  751.  Where  the  prosecutor 
omitted  to  proceed  with  a  mandamus  after  a  return  had  been  made,  the  Court 
of  Queen's  Bench  compelled  him  to  elect  either  to  proceed  or  pay  the  costs. 
Regina  r.  Dartmouth,  2  Dowl.  P.  C.  n.  s.  980.  If  the  quo  tcarranto,  man- 
damus, or  other  like  writ,  is  procured  by  the  real  party  in  interest,  who  is 

[*628] 


§  151.]       CKNERAL   UULES   OF   LAW    GOVKUNING    THIS   UKMKDY.         C79 

8.  Service  of  such  jtrocess,  and  iiidecd  (jf  all  process,  bv  smu- 
mons  in  En^^^hind,  is  l)y  drliverinj^  the  (Jiiginul  where  there  is  but 
*  one  i)erson  summoned,  and  wliere  there  arc  more  tlmn  one,  by 
showinti:  the  oriLnnal,  and  dL'liverini^  a  copy  to  each  defendant  but 
one,  and  the  original  left  with  such  one.  But  service  by  coj)y  of 
a  writ  of  mandamus  was  held  sufhcicnt.^^  (f) 

9.  By  the  later  English  statutes  upon  the  subject  of  mandu- 
mus,^'^  any  jjarty  requiring  any  order,  in  tiie  nature  of  specific  i>er- 
formancc,  may  commence  his  action  in  any  of  the  superior  courts 
of  common  law  in  Westminster  Hall,  except  in  replevin  and  eject- 
ment, and  may  indorse  ujion  the  writ  and  copy  to  be  served,  that 
the  plaintiif  intends  to  claim  a  writ  of  mandannis,  and  the  plain- 
tiff may  thereupon  claim  in  the  declaration,  either  together  with 
any  other  demand  which  may  now  be  enforced  in  such  acti<»n,  or 
separately,  a  writ  of  mandamus,  commanding  the  defendant  to 

able  to  paj'  costs,  to  be  prosecuted  by  some  one  not  able  to  pay  costs,  the 
Court  of  Queen's  Bencli  will  grant  a  rule,  requiring  the  real  party  to  pay 
costs.  Rcgina  v.  Greene,  4  Q.  li.  GIG.  See  also  a  general  rule,  adopted  im- 
mediately after  the  decision  of  the  last-named  case,  Easter  Term,  184;i,  re- 
quiring a  formal  rule,  for  payment  of  costs  in  mandamus,  to  be  drawn  up 
immediately  on  reading  all  the  allidavits  on  both  sides,  4  Q.  li.  Go3.  The  rule 
for  costs  is  decided  on  the  reading  only  of  the  allidavits,  with  reference  to 
'which  the  rule  is  drawn  up.  Regina  v.  St.  Peter's  C'ullege,  1  Q.  B.  311,  over- 
ruling Rex  V.  Kirke,  5  B.  &  Ad.  lOSf).  The  parties  are,  iu  the  Kiiglish  cases, 
required  to  pay  costs  occasioned  by  their  delay.  Regina  r.  Cambridge,  4  Q.  U. 
801.  But  where  the  judge  makes  a  mistake,  the  parties  who  come  to  defend 
his  ruling,  which  they  are  bound  to  suppose  correct,  do  not  pay  costs.  Regina 
V.  London  &  Blackwall  Railway  Co.,  6  Railw.  Cius.  400,  and  note.  The  party 
who  institutes  proceedings  for  mandamus,  which  he  is  compelled  to  abandon, 
by  personal  misfortune,  as  being  pauperized  by  the  loss  of  his  trade,  must 
still  pay  costs,  as  the  court  could  only  conclude  he  had  no  grounds  l«»  8Uj>iK)rt 
his  petition.  Regina  r.  London  &  Blackwall  Railway  Co.,  4  Jur.  8jU.  Sec, 
also,  Ex  parte  Morse,  18  Pick.  4  l;5. 

12  Regina  v.  Birmingham  c<:  Oxford  Railway  Co.,  1  Ellis  &  B.  20;J;  8.  c.  16 
Eng.  L.  &  Eq.  91.  The  conductor  of  a  railway  train  in  some  of  the  stales 
is  regarded  as  a '"hired  agent "  of  the  company,  within  tlie  meaning  of  the 
statute  allowing  the  service  of  process  on  such  agent.  New  Albany  &  Salem 
Railroad  Co.  v.  Grooms,  9  Ind.  24:3. 

"  Statute  17  &  18  Vict.  c.  125. 

(c)  Service  on  a  mere  financial  Same  r.  Same,  41  N.  J.  Law,  250. 
oflBcer  of  the  company  is  not  good.  But  otherwise  of  .service  on  tbe  clerk 
State  V.  Pennsylvania  Railroad  Co.,  of  a  board  of  county  commissioners  m 
42  N.  J.  Law,  400.  Nor  is  service  Kansas.  Commissioners  r.  Sellew,  09 
on   a  superintendent    of   a  division.     U.  S.  G2I. 

[•G29] 


680  MANDAMUS.  [PART   VII. 

fulfil  any  duty  in  the  fulfilment  of  which  the  plaintiff  is  person- 
ally interested.  And  if  a  mandamus  is  awarded,  it  may  issue 
peremptorily  in  the  first  instance  in  aid  of  the  execution,  for  dam- 
ages and  costs.  The  form  of  the  writ  is  very  brief,  and  compliance 
with  its  requisition  is  to  be  enforced  by  attachment.  The  prero- 
gative writ  is  still  retained,  but  its  use,  and  also  that  of  decrees 
for  specific  performance  in  equity,  seem  to  be  superseded  by  these 
provisions,^*  at  least  to  some  extent. 


♦SECTION  II. 

Particular  Cases  ivhere  Mandamus  lies  to  enforce  Duty  of 
Corporations. 

§  152.  The  opinion  of  Jervis,  C.  J.  in  the  case  of  York  &  North 
Midland  Railway  v.  Regina,i  is   perhaps  the   best   commentary 

'*  A.mandamus  to  a  local  board  of  health,  constituted  under  Statute  11  &  12 
Vict.  c.  63,  recited  that  the  prosecutor  had  been  injured  by  the  board  in  the 
prosecution  of  its  powers  under  the  act;  that  he  had  demanded  compensation 
from  the  board,  and  that  they  had  denied  all  liability,  and  commanded  the  board 
that  compensation  be  made  to  him  out  of  the  general  or  special  rate  to  be  lev- 
ied under  the  act.  The  return  stated  that  the  board  had  not  denied  all  liabil- 
ity, and  that  it  was  always  ready  to  make  compensation,  as  soon  as  it  had 
been  duly  ascertained  under  the  act;  that  it  had  not  as  yet  been  so  ascertained; 
nor  had  the  prosecutor  as  yet  taken  any  steps  to  ascertain  the  amount,  or 
notified  the  board  of  the  amount  of  his  claim,  or  appointed  or  given  notice 
to  appoint  an  arbitrator.  This  return  was  traversed,  generally;  and  on  the 
trial  it  was  found  that  the  board  had  denied  all  liability,  and  a  verdict  was 
entered  for  the  prosecutor.  On  a  motion  to  enter  the  verdict  on  the  rest  of 
the  return  for  the  board,  and  to  enter  judgment  for  the  board,  it  was  held  that 
the  mandamus  was  good,  and  that  the  prosecutor  was  entitled  to  a  verdict  on 
the  whole  of  the  return,  and  to  a  peremptory  mandamus,  on  the  ground  that, 
as  there  did  not  appear  by  the  return  to  be  any  dispute  as  to  the  amount,  the 
rest  of  the  allegations  in  the  return,  apart  from  the  traverse  of  denial  of  lia- 
bility, were  immaterial.  Regina  v.  Burslem  Board  of  Health,  5  Jur.  n.  s. 
1394;  s.  c.  1  Ellis  &  E.  1077,  1088.  And  generally,  where  a  debt  is  of  such  a 
nature  that  mandamus  will  be  granted  to  enforce  its  payment,  it  is  not  neces- 
sary that  the  amount  of  the  debt  should  be  previously  ascertained,  but  such 
amount  may  be  ascertained  in  the  verdict  of  the  jury  in  the  action  in  which 
mandamus  is  claimed.  Ward  v.  Lowndes,  5  Jur.  n.  s.  1124;  s.  c.  in  Exche- 
quer Chamber,  1  Law  T.  N.  s.  268;  1  Ellis  &  E.  940.  But  see  McCoy  v.  Har- 
nett County,  .5  Jones  N.  C.  265. 

1  1  Ellis  &  B.  858;  s.  c.  18  Eng.  L.  &  Eq.  199.     "  Upon  these  facts  several 
points  arise:  First,  does  the  statute  of  1849  cast  on  the  plaintiffs  in  error  a 
[*630] 


§  152.]     CASES  TO  ENFORCE  DUTY  OF  CORPORATIONS.        OSl 

*  we  could  ^ivo  upon  the  present  state  of  the  Kuglisli  law  ujxjn 
this  subject. 

duty  to  make  this  railway?  Secondly,  if  it  does  not,  is  there  under  the  cir- 
cumstances a  contract  between  the  plaintilTs  in  error  and  the  land-owners, 
which  can  be  enforced  by  mandamus?  Thirdly,  and  failing  these  projKjsi- 
tions,  does  a  work,  which  in  its  inception  was  permissive  only,  become  obliga- 
tory by  part-performance?  These  questions  will  be  found  ujKjn  examination 
to  exhaust  the  subject,  and  to  comprehend  every  view  in  which  the  mandamus 
can  be  supported.  In  substance,  do  these  acts  of  parliament  render  the  com- 
pany, if  they  do  not  make  this  railway,  liable  to  an  indictment  for  a  mis- 
demeanor, and  to  actions  by  the  party  ajjgrieved?  For  if  they  do  not,  a 
mandamus  will  not  lie,  and  thus  the  question  depends  entirely  ujx)n  the  con- 
struction of  the  special  act,  and  the  statutes  incorporated  therewith.  The  act 
of  1849  may  cast  the  duty  upon  the  plaintiffs  in  error,  in  one  of  two  ways;  it 
may  do  so  by  express  words  of  obligation,  or  it  may  do  so  by  words  of  permis- 
sion only,  if  the  duty  can  be  clearly  collected  from  the  general  purview  of  the 
■whole  statute.  The  words  of  the  3d  section  of  the  act  of  1819,  '  it  shall  be 
lawful  for  the  said  company  to  make  the  said  railway,'  are  permissive  only,  and 
not  imperative,  and  it  is  a  safe  rule  of  construction  to  give  to  the  words  used 
by  the  legislature  their  natural  meaning,  when  absurdity  or  injustice  does  not 
follow  fiom  such  a  construction.  Indeed,  if  there  were  any  doubt  upon  this 
subject,  other  parts  of  the  statute  referred  to  in  the  argument  clearly  show 
that  these  words  were  intended  to  be  permissive  only.  The  distinction  is  well 
put  by  my  brother  Ekle:  '  The  company  are  permitted  at  their  option  to  take 
lands,  turn  roads,  alter  streams,  and  exercise  other  powers,  and  these  matters 
are  made  lawful  for  them;  but  they  are  conunanded  to  make  compensation 
for  lands  taken,  to  substitute  roads  for  those  they  turn,  and  to  pt-rform  other 
conditions  relating  to  the  exercise  of  their  powers,  and  these  matters  are  re- 
quired of  them.'  It  .seems  clear,  therefore,  that  the  duty  is  not  cast  ujxin  tho 
plaintiffs  in  error  by  the  express  words  of  the  statute  of  1819;  and  indeed,  it 
was  not  so  urged  in  the  argument;  nor  was  it  so  put  by  Lord  Ca-Mthkll  in 
his  judgment  in  the  court  below.  But  it  does  not  follow,  merely  because  the 
words  of  the  3d  section  are  permissive  only,  that  there  is  no  duty  cast  upon 
the  plaintiffs  in  error,  by  the  statute  taken  altogether,  to  make  this  railway. 
This  point  was  not  relied  upon  in  this  case  in  the  coin-t  below,  but  it  waa 
made  the  distinct  ground  of  a  decision  in  another  case  in  that  court  (Tho 
Queen  v.  The  Lancashire  &  Yorkshire  Railway  Co.),  and  wajj  much  presst'd 
in  the  argument  before  us  in  support  of  this  judgment. 

"  It  becomes  necessary,  therefore,  to  examine  the  statute  in  its  general  pro- 
visions, and  to  consider  the  grounds  on  which  the  Court  of  Queen's  Bench 
proceeds  in  the  case  of  the  Queen  r.  The  Lanca.shire  &  Yorkshire  Ilaihvay  Co., 
1  Ellis  &  B.  228;  IG  Kng.  L.  &  Eq.  328.  We  agree  with  Ix)rd  Cami-hf.ix, 
that  the  portion  of  the  line  between  Market  WeighUm  and  Cherry  Burton,  to 
which  the  mandamus  applies,  is  not  to  be  considered  as  a  separato  railw.ay,  or 
even  as  a  separate  branch  of  a  railway,  but  it  is  to  be  treated  as  if  in  its  pres- 
ent direction  it  had  been  included  in  the  act  of  1810.     The  acts  then,  taken 

[-031] 


682 


MANDAMUS. 


[part    VII. 


*SECTION    III. 

Mandamus  appropriate  to  reinstate  Officers  and  Members  of  Cor- 
porations in  positions  taken  from  them  hij  the  Corporation. 


1.  Formerly  {jranted  only  to  restore  to 

public  office. 

2.  Now  granteil  in  all  cases  where   the 

office  is  of  value  and  sufficiently  per- 
manent. 


3.  Not  available,  where  election  annual 

and  issue  one  of  fact,  and  not  triable 
witiiin  the  term. 

4.  Claimant  must  have   permanent  and 

vested  interest. 


§  153.  1.  It  does  not  come  within  the  scope  of  this  work  to  ex- 
amine with  minuteness  all  questions  arising  upon  the  law  of  cor- 

together,  in  substance,  recite  that  it  will  be  an  advantage  to  the  public  if  a 
railway  is  made  from  York  to  Beverley,  through  ^Market  Weighton  and  Cherry 
Burton,  according  to  certain  plans  and  sections  deposited,  as  required  by  the 
practice  of  parliament,  and  referred  to  in  the  statute,  and  that  the  plaintiffs  in 
error  are  willing  to  make  that  railway.  On  this  basis  the  whole  provisions 
are  founded.  It  has  been  proved  that  the  work  will  be  advantageous  to  the 
jjublic;  it  is  assumed  it  will  be  profitable  to  the  company,  and  that,  there- 
fore, they  will  willingly  undertake  it.  Accordingly,  the  company  are  empow- 
ered to  make  this  line.  If  they  do  make  it  they  may  take  land ;  but  if  they 
do  take  land  they  must  make  compensation.  If  necessary,  they  may  turn 
roads,  or  divert  streams;  but  if  they  do,  they  must  make  new  roads  and  new 
channels  for  the  streams  they  alter.  Similar  provisions  pervade  the  whole 
statute,  and  throughout  the  command  waits  upon  the  authority,  and  the  dis- 
tinction between  '  may'  and  '  must '  is  clearly  defined.  But  as  it  is  manifest 
tliat  sucli  general  powers  must  stop  competition,  and  may,  to  a  certain  extent, 
V)e  injurious  to  land-owners  on  the  line,  the  compulsory  power  to  take  land  is 
limited  to  three  years,  and  the  time  for  making  the  railway  to  five,  after 
which  the  powers  granted  to  the  company  cease,  except  as  to  so  much  of  the 
line  as  shall  have  been  completed,  and  the  land,  if  taken  by  the  company, 
reverts,  on  certain  terms,  to  the  original  proprietors.  An  argument  might 
have  been  founded  on  the  terms  in  which  the  latter  provision  is  contained. 
By  the  10th  section  of  the  act  of  1819,  it  is  enacted  that  the  railway  shall  be 
completed  within  five  years  from  the  passing  of  this  act.  That  section  was 
not  referred  to  in  the  argument  for  this  purpose,  but  it  might  be  said  that 
these  words  were  compulsory,  and  imposed  a  duty  upon  the  company  to  make 
the  line.  The  context  of  the  section,  however,  when  examined,  shows  that 
such  is  not  the  meaning  of  it.  If  not  completed  within  five  years,  the  powers 
of  the  act  are  to  expire,  except  as  to  so  much  of  such  railway  as  shall  have 
been  completed.  If  the  section  were  intended  to  be  obligatory,  it  would  not 
contain  that  exception  which  contemplates  that  the  line  may  be  made  in  part. 
It  is  inconsistent  to  suppose  that  the  legislature  would  say  to  the  company  in 
the  same  section,  vou  may  complete  a  part  only,  if  you  can,  in  five  years,  and 

[*632] 


§  l.>5.]  RK.MKDV   TO    UDriTOUi:    OTFICEUS    AND    MiMi;!!-;  Ti;', 

porations,  *  as  alToctcd  by  tlie  writ  of  maiKhuuu.s.  jjut  il  mav  U- 
useful   to  state  that   this  is  tlie  apiJi-ojuialu  nnicilv.  \\li.  t,-  miv 

tlien  as  to  that  part  the  powers  of  the  act  shall  cuDiimu-,  hut  you  nm^i  , ,  tn- 
plete  the  entire  line  in  tiiat  time.  I'pon  the  whole,  tlierefore,  we  fiinl  no  <hity 
cast  upon  tlie  company  to  make  this  railway  in  any  part  (if  thi.s  act 
ment.  On  the  contrary,  the  le;,Mslature  seems  to  conlemiilate  the  | 
of  the  railway  being  made  in  part,  or  being  totally  abaniioneil.  In  the  latter 
case  the  powers  expire  in  three  or  five  years;  in  the  former  the  ntatiit^.- remains 
in  force  as  toso  much  of  the  railway  as  shall  liave  been  complt-teil  within  thai 
time,  and  expires  as  to  the  residue.  This  provision  is  inconsistent  with  the 
intention  to  compel  the  company  to  make  the  entire  line,  as  the  consideration 
for  the  powers  granted  by  the  act. 

'•  But  it  is  .said  that  a  railway  act  is  a  contract  on  tlie  part  of  the  conipaii)' 
to  make  the  line,  and  that  the  public  is  a  party  to  that  contract,  and  will  be 
aggrieved  if  the  contract  may  be  repudiated  by  the  company  at  any  time 
before  it  is  acted  upon.  Though  commonly  so  siKiken  of,  railway  acts,  in  our 
opinion,  are  not  contracts,  and  cannot  be  construed  as  such.  They  are  «hat 
they  purport  to  be,  and  no  more.  They  give  conditional  powers,  which,  if 
acted  upon,  carry  with  them  duties,  but  which,  if  not  acted  ujx>n,  are  not, 
either  in  their  nature  or  by  express  words,  im|>erative  on  the  comjianicA  to 
which  they  are  granted.  Courts  of  justice  ought  not  to  depart  from  the  plain 
meaning  of  the  words  used  in  acts  of  parliament.  When  they  do,  they  make 
but  do  not  construe  the  laws.  If  it  had  been  so  intended,  the  statute  should 
have  required  the  companies  to  make  the  line  in  exi>ress  terms;  indee<l,  ntjtne 
railway  acts  are  framed  upon  this  principlt;;  and  to  say  that  there  Ls  no  differ- 
ence between  words  of  requirement  and  words  of  authority  when  found  in 
such  acts,  is  simply  to  affirm  that  the  legislature  does  not  know  the  meaning  of 
the  commonest  expressions.  But  if  we  were  at  lilnirty  to  speculate  upon  the 
intentions  of  the  legislature  when  the  words  are  clear,  and  to  construe  an  net 
of  parliament  by  our  own  notions  of  what  ought  to  have  been  enact«'d  njx<n  the 
subject,  —  if,  sitting  in  a  court  of  justice,  we  could  make  laws,  nmch  might 
be  said  in  favor  of  the  course  which,  in  our  opinion,  is  taken  I>y  the  Iegi»l»- 
ture  on  such  subjects.  Assuming  that  the  line,  if  made,  would  Iw  prxifiLable 
to  the  public,  that  benefit  may  be  delayed  for  five  years,  during  which  time 
competition  is  suspended.  On  the  other  hand,  if  the  line  would  pay,  it  pnil>- 
ably  will  be  proceeded  with,  unless  the  company  havimr  tin*  |><'\\ 
tent  to  the  task.  Individual  land-owners  maybe  In-nefited  by  i 
of  capital  in  their  neighborhood,  without  looking  to  the  ulliu  but 

it  is  not  for  the  public  interest  that  the  work  should  be  un.i  v  an 

incompetent  company,  nor  that  it  should  be  begun,  if,  when  luode,  it  woulJ 
not  be  rennmerative.  By  leaving  the  exercise  of  the  powers  to  the  option  of 
the  company,  the  legislature  adopts  the  safest  check  on  abu.scin  eitiierof  thuM 
respects,  namely,  self-interest.     It  seems  to  us.  therefore,  tiiat  .tute* 

do  not  cast  upon  the  plaintitTs  in  error  the  duty,  eith.-r  by  rx,  ■-  or 

by  implication;  that  we  ought  to  adhere  to  the  plain  meaning  of  ij...  wonU 
used  by  the  ledslature,  which  are  permissive  only,  and  tlure  is  no  rcv^on.  in 

[•G33J 


684  MANDAMUS.  [PART   VII. 

*  member  or  officer  of  a  corporation  is  unlawfully  deprived  of  his 
proper  office  or  function  in  the  affairs  of  the  company  through 

policy  or  otherwise,  why  we  should  endeavor  to  pervert  them  from   their 
natural  meaning. 

"  But  it  is  said  that  the  land-owners  are  in  a  better  situation  than  the  pub- 
lic at  large,  and  that  the  privilege  to  take  their  own  lands  is  the  consideration 
which  binds  the  company  to  complete  the  railway.  That  during  the  currency 
of  the  three  years  they  are  deprived  of  their  full  rights  of  ownership,  and,  if 
not  to  be  compensated  by  the  construction  of  the  railway,  they  would  in  many 
cases  suffer  a  loss,  because,  whilst  the  compulsory  power  of  purchase  subsists, 
they  are  prevented  from  alienating  their  lands  or  houses  described  in  the 
books  of  reference,  and  from  applying  them  to  any  purposes  inconsistent  with 
the  claim  that  may  be  made  to  them  by  the  railway  company.  In  truth,  they 
are  not  prevented  from  so  doing  at  any  time  before  the  notice  to  take  their 
land  is  given,  if  they  act  bonaf.de  in  the  mean  time;  the  notice  to  take  their 
lands  being  the  inception  of  the  contract  between  the  land-owners  and  the 
company.  But  if  this  complaint  was  better  founded,  it  does  not  follow,  because 
certain  land-owners  are  subjected  to  temporary  inconvenience  for  the  perform- 
ance of  a  public  good,  that  therefore  the  company  are  bound  to  make  the  whole 
railway.  If  it  were  a  contract  between  the  land-owners  and  the  company,  it 
would  not  be  just  that  one  should  be  bound  and  the  other  free.  But  to  assert 
that  there  is  a  contract  between  the  land-owners  and  the  company,  is  to  beg  the 
whole  question;  for  on  this  part  of  the  case  the  question  is,  whether  there  is 
such  a  contract.  As  a  matter  of  fact,  we  know  that  in  many  cases  no  such 
actual  contract  exists.  Some  few  proprietors  may  desire  and  promote  the 
railway,  but  many  others  oppose  it,  either  from  disinclination  to  the  project 
or  with  a  view  to  make  better  terms.  With  the  dissentients  there  is  no  con- 
tract, unless  it  be  found  in  the  statute,  and  to  the  statute  therefore  we  must 
look  to  see  what  is  the  obligation  that  is  cast  upon  the  company  in  respect 
of  the  land-owners  upon  the  line.  As  in  the  former  case,  the  words  upon 
this  subject  are  permissive  only.  The  company  may  take  land;  if  they  do 
they  must  make  full  compensation.  And  Iti  that  state  of  things,  if  there  be  a 
bargain  between  the  parties,  what  is  the  bargain?  The  company  say,  in  the 
language  of  the  statute,  that  the  bargain  is  that  they  shall  make  full  compen- 
sation for  the  land  taken,  and  no  more;  the  prosecutors  say,  that  the  consid- 
eration to  be  paid  for  the  land  is  the  full  compensation  mentioned  in  the  act, 
and  also  the  further  consideration  of  the  construction  of  the  entire  line  of  rail- 
way from  York  to  Beverley.  But  if  this  is  the  price  which  the  prosecutors  are 
to  have,  each  land-owner  is  entitled  to  the  same  value,  and  yet  by  this  manda- 
mus the  other  proprietors  on  the  line  from  Market  Weighton  to  Cherry  Bur- 
ton, who  perhaps  are  hostile  to  the  application,  are  constrained  to  sell  their 
lands  for  an  inadequate  consideration,  namely,  the  full  compensation  and  a 
part  only  of  the  line  of  railway,  to  which,  by  the  hypothesis,  they  were  enti- 
tled by  the  original  bargain.  If  this  were  the  true  meaning  of  the  statute,  it 
would  indeed  be  unjust,  more  so  than  the  imposition  of  the  temporary  incon- 
venience to  which  it  is  said  the  land-owners  may  be  subject,  and  to  which  we 
[*634] 


§  153.]  REMEDY   TO    RESTORE   GPriCERS    AND    MEMBEBS.  C86 

*  its  agency.  This  is  somewhat  questioned  by  some  of  tlie  earlier 
English  cases. ^ 

have  already  referred.  But  that  that  is  not  the  true  meaning,  is  cle.ir  from 
the  words  of  the  statute,  wliich  are  permissive,  and  only  iniixjse  tlie  duly  of 
raakin;jf  full  coinpensatioii  to  each  land-owner,  as  the  option  of  taking  the 
land  of  each  is  exercised;  and  further,  from  the  section  to  which  we  have 
already  referred,  which  contemplates  the  total  abandoimn/nt  of  the  line,  or  a 
part-performance  of  it,  and  makes  provision  for  the  return  of  the  land  to  the 
original  proprietors  in  certain  cases.  Upon  this  part  of  the  case  the  authority 
of  Lord  Eloon,  in  Blakemore  v.  The  Glamorganshire  Canal  ComjMny,  1  Myl. 
&  K.  151,  was  much  pressed  upon  the  court.  Speaking  of  c<jnlrarLs  for  pri- 
vate undertakings  he  says:  '  When  I  look  upon  the.se  acts  of  parliament  I 
regard  them  all  in  tlie  light  of  contracts  made  by  the  legi.slature  on  behalf  of 
every  person  interested  in  anything  to  be  done  under  them,  and  I  have  no 
hesitation  in  asserting  that,  unless  that  principle  be  applied  in  con^truing 
statutes  of  this  description,  they  become  instruments  of  greater  opi>rcR,sion 
than  anything  in  the  whole  system  of  administration  under  our  constitution. 
Such  acts  of  parliament  have  now  become  extremely  numerous,  atid  from  thi-ir 
number  and  operation  they  so  much  affect  individuals,  that  I  appn-ht-nd  those 
who  come  for  them  to  parliament  do,  in  effect,  undertake  that  they  .shall  do 
and  submit  to  whatever  the  legislature  empowers  and  comj^els  them  to  do,  and 
that  they  shall  do  nothing  else;  that  they  shall  do  and  forljear  all  that  th»'y 
are  hereby  required  to  do  and  forbear,  a?  well  with  reference  to  the  int»'rest  of 
the  public  as  with  regard  to  the  interest  of  individuals.'  There  is  nothing  in 
that  language  to  which  it  is  necessary  to  make  the  least  exception  ;  indeed  it 
is  nothing  more  than  an  illustration  of  the  obligatory  nature  of  the  duty  im- 
posed by  acts  of  parliament,  which  do  impose  a  duty  with  reference  to  other 
persons.  In  that  case  the  statute  had  secured  to  Mr.  Hlakeinore  the  onrplu* 
water,  and  had  commanded  the  company  to  do  certain  things  that  he  mi^ht 
enjoy  it.  In  discussing  whether  Mr.  BlaktMnore's  right  under  tin-  statute  was 
affected  by  his  right  before  the  statute,  his  lordship  might  well  -say  he  c»>Il^id- 
ered  the  statute  the  origin  of  Mr.  Blakemore's  right  in  the  light  of  a  contrnct, 
and  the  statute  then  under  discussion  containing  express  wonls  of  comm.ind, 
he  might  well  add,  that  those  who  come  for  such  acts  of  parliament  tlo.  in 
effect,  undertake  that  they  shall  do  and  submit  to  whatever  the  Ifgislnturo 
empowers  and  compels  them  to  do.  As  we  understand  them,  the  word;*  uvsl 
by  Lord  Eldo.n  in  no  respect  conflict  with  the  view  we  take  of  this  ra!»««;  but 
if  they  mean  that  words  of  permission  only,  when  used  in  the  cIa.M  of  cohm 
under  consideration,  should  receive  a  construction  different  from  their  ordi- 
nary meaning,  because,  if  construed  otherwi.<e.  they  might  work  injustice, 
with  great  respect  for  his  high  authority,  we  dissent  from  that  pmpo»ilion. 
We  agree  with  my  brother  .\t.i)KRS<iy,  who,  in  Lee  v.  Milner.  2  Y.  &  Col.  611, 
said:    'These  acts  of  parliament  have  been  called  parliamentary  bargains, 


1  Vaughn  v.  Gunmakers'  Company,  0  Mod.  82;  9.  r.  Comb.  4o:  White's 
Case,  6  Mod.  18. 

[•625] 


686  MANDAMUS.  [PART   VII. 

*  2.  But  a  different  rule,  as  to  requiring  the  ofTice  to  be  of  a 
public  nature  to  justify  the  writ  of  mandamus  to  restore  the  party 

made  with  each  of  the  land-owners.  Perhaps  more  correctly  they  ought  to  be 
treated  as  conditional  powers  given  by  parliament  to  take  the  lands  of  the 
different  proprietors  through  whose  estates  the  works  are  to  proceed.  Each 
land-owner,  therefore,  has  the  right  to  have  the  power  strictly  and  literally 
carried  into  effect  as  regards  his  own  land,  and  has  the  right  also  to  require 
that  no  variations  shall  be  made  to  his  prejudice  in  the  carrying  into  effect  a 
bargain  between  the  undertakers  and  any  one  else.'  — '  This,'  he  adds,  '  I  con- 
ceive to  be  the  real  view  taken  of  the  law  by  Lord  Eldon,  in  the  case  of 
Blakemore  v.  The  Glamorganshire  Canal  Company.'  There  remains  but  one 
further  view  of  the  case  to  be  considered,  and  that  we  have  partly  disposed  of 
in  the  observations  we  have  already  made;  but  inasnuich  as  Lord  Campbell 
proceeded  on  this  ground  only  in  the  court  below,  although  it  was  not  much  re- 
lied upon  before  us  in  the  argument,  we  have,  out  of  respect  for  his  high  author- 
ity, most  carefully  examined  it,  and  are  of  opinion  that  the  mandamus  cannot 
be  supported,  on  the  ground  that  the  railway  company,  having  exercised  some 
of  their  powers  and  made  a  part  of  their  line,  are  bound  to  make  the  whole 
railway  authorized  by  their  statutes. 

"It  is  unnecessary  here  to  determine  the  abstract  pi'oposition,  that  a  work 
which,  before  it  is  begun,  is  permissive,  is,  after  it  is  begun,  obligatory.  We 
desire  not  to  be  understood  as  assenting  to  the  proposition  of  my  brother 
Erle,  that  many  cases  may  occur  where  the  exercise  of  some  compulsory 
powers  may  create  a  duty  to  be  enforced  by  mandamus;  and,  on  the  other 
hand,  we  do  not  say  that  such  may  not  be  the  law.  If  a  company,  empowered 
by  act  of  parliament  to  build  a  bridge  over  the  Thames,  were  to  build  one  arch 
only,  it  would  be  well  deserving  consideration  whether  they  could  not  be  in- 
dicted for  a  nuisance  in  obstructing  the  river,  or  for  the  non-performance  of 
duty  in  not  completing  the  bridge.  It  is  sufficient  to  say  that  in  this  case 
there  are  no  circumstances  to  raise  such  a  duty,  if  such  a  duty  can  be  created 
by  the  acts  of  plaintiff  himself.  The  plaintiffs  in  error  have  made  the  prin- 
cipal portion  of  their  line,  and  they  have  abandoned  the  residue  for  no  corrupt 
motive,  but  because  Beverley  has  already  sufficient  railway  communication, 
and  because  the  residue  of  the  line  passes  through  a  country  thinly  populated, 
and  if  made  w'ould  not  be  remunerative.  But  it  is  said  that  the  railway  com- 
pany are  not  in  the  situation  of  purchasers  of  land,  with  liberty  to  convert  it 
to  any  purpose,  or  to  allow  it  to  be  waste;  that  they  are  allowed  to  purchase  it 
only  for  a  railway,  and  having  acquired  it  under  the  compulsory  power  of  the 
act,  there  must  be  an  obhgation  upon  the  company  to  apply  the  laud  to  that 
and  to  no  other  purpose.  Subject  to  the  qualification  in  the  act,  this  is  un- 
doubtedly true.  Having  acquired  the  lands  of  particular  land-owners,  the 
company  could  not  retain  them  by  merely  laying  rails  on  the  lands  so  taken, 
and  we  agree  it  never  was  intended  that  the  land-owners  should  be  left  with  a 
high  mound  or  a  deep  cutting  running  through  their  estate,  and  leading 
neither  to  nor  from  any  available  terminus.  The  precaution  against  such  a 
wasteful  expenditure  of  capital  may,  perhaps,  safely  be  left  to  the  self-interest 


§  153.]  REMEDY    TO   RESTORE   OFFICERS    AND    MEMBERS.  687 

to  *  it,  seems  to  have  obtained  since  the  case  of  Ilex  v.  Barker,^ 
and  the  only  proper  inquiry  now  is  whether  tlic  plaintiff  has  any 

of  the  company,  but  if  such  work  were  to  be  done,  it  would  not  be  a  practica- 
ble railway,  and  after  five  years  the  powers  of  the  act  would  expire,  and  the 
land  revest  in  the  original  proprietor.  It  is  true  that  he  would  sustain  some 
inconvenience  without  the  corresponding  advantage  of  railway  communication, 
but  in  the  mean  time  he  would  have  received  full  compensation  in  the  market 
value  of  the  land,  and  for  all  damage  by  severance  or  otherwise,  and  would 
receive  back  the  land  on  more  reasonable  terms.  To  be  a  railway  it  must 
have  available  termini.  When  the  statutes  passed,  all  persons  supposed  the 
termini  would  be  York  and  Beverley;  and  if  the  arguments  be  well  founded, 
and  the  company  are  bound,  if  they  take  the  land  upon  any  portion  of  the 
railway,  to  complete  the  whole  line,  it  would  seem  to  follow  that  one  of  the 
proprietary,  by  compelling  the  company  to  take  his  land  on  the  line  from 
Market  Weighton  to  Cherry  Burton,  would  thus  entitle  himself  to  a  manda- 
mus to  compel  them  to  make  the  line  from  Cherry  Burton  to  Beverley,  and  the 
acts  having  expired,  to  apply  to  parliament  for  a  renewal  of  their  powers  for 
that  purpose.  But  although  the  termini  were  originally  intended  to  be  York 
and  Beverley,  it  is  .plain  that  the  legislature  contemplated  the  possibility  of 
the  line  being  abandoned  or  being  only  partially  made,  because  in  the  one 
case  the  powers  of  the  act  were  to  cease,  and  in  the  other  they  were  partially 
continued.  An  option,  therefore,  is  given  to  some  one.  By  the  course  taken 
the  Court  of  Queen's  Bench  has  exercised  that  option,  and  said  the  line  is  to 
be  made,  not  to  Beverley,  but  to  Cherry  Burton.  In  our  opinion  that  ojition 
is  left  to  the  company,  and  the  company  having  Jtona  Jide  made  an  availablo 
railway  over  the  land  taken,  the  obligation  to  the  land-owner  has,  in  that 
respect,  been  fulfilled.  The  cases  upon  this  subject  are  very  few,  and  the 
absence  of  authority  is  vpry  striking,  when  we  remember  how  many  acts  have 
passed  in  pari  materia,  not  only  for  railways,  but  also  for  bridges  and  turnpike 
roads.  Notwithstanding  the  numerous  occasions  on  which  such  proceedings 
might  have  been  taken,  and  the  manifest  interest  of  landowners  to  enforce 
their  rights,  no  instance  can  be  found  of  an  indictment  for  disobeying  such  a 
statute,  or  of  a  mandamus  for  the  purpose  of  enforcing  it.  If  correctly  re- 
ported. Lord  Mansfield  determined  this  point  in  Rex  r.  Proprietors  of  the 
Birmingham  Canal,  2  Bl.  708,  for  he  saj'S  the  act  imports  only  an  authority 
to  the  proprietors,  not  a  command.  They  may  desert  or  suspend  the  whole 
work,  and  a  fortiori,  any  part  of  it.  On  the  other  side,  the  language  of  Lord 
J>i,i)OX,  in  Blakcmore  v.  Glamorganshire  Canal  Company,  is  referred  to  as  an 
authority  for  this  mandamus.  In  our  opinion  it  does  not  bear  that  construc- 
tion, although  it  appears  that  tlie  Court  of  Queen's  Bench  took  a  different 
view  of  that  authority  in  the  case  of  Rcgina  i-.  Eastern  Counties  Railway  Co., 
10  A.  &  E.  0.31,  and  was  inclined  to  act  upon  it,  and  award  a  mandamus. 
The  writ  was  subsequently  withheld  in  that  case  on  another  ground,  but  Lord 
Dkxman  seems  to  have  been  of  opinion  that  on  a  fit  occasion  a  mandamus 

2  3  Bur.  1207. 

[♦637] 


G88  MANDAMUS.  [PART   VII. 

such  valuable  and  permanent  interest  in  the  office  or  place  as  to 
justify  the  granting  of  the  writ.^ 

3.  It  was  held,  in  an  early  casc^  in  Massachusetts,  that  this 
remedy  could  not  be  rendered  available  in  cases  where  the  office 
only  extended  to  one  year,  and  the  question  arising  upon  the  re- 
turn of  the  writ  was  one  of  fact,  the  traverse  to  which  could  not, 
according  to  the  course  of  practice  in  that  court,  be  determined 
before  the  term  of  the  office  would  expire.  "  The  cases,  there- 
fore," say  the  court,  "  in  which  the  writ  of  mandamus  may  be  an 
adequate  remedy,  in  admitting  or  restoring  to  office,  seem  to  be 
where  the  office  is  holden  for  a  longer  term  than  a  year,  or  w^here 
the  return  to  the  writ  will  involve  merely  a  question  of  law,  so 
that,  admitting  the  facts  to  be  true,  a  peremptory  mandamus 
ought  to  go." 

4.  It  was  accordingly  held,  in  an  English  case,-^  that  as  manda- 
mus to  reinstate  a  person  in  office  only  lies  where  the  office  and 
its  tenure  are  of  a  permanent  nature,  it  is  not  an  available  rem- 
edy for  the  secretary  of  a  benefit  society,  who  had  been  dismissed 
by  a  resolution  of  a  meeting  of  the  society.  The  court  here  seem 
to  consider  that  the  office  must  be  of  such  a  character  that  the 
incumbent  has  such  a  vested  and  permanent  interest  in  the  same 
as  that  the  court  could  render  the  operation  of  the  writ  of  man- 
damus effective  towards  restitution,  and  where  its  operation  is 
.not  liable  to  be  countervailed  by  any  counter  agency. 

ought  to  go.  That,  and  the  recent  cases  in  the  Queen's  Bench,  now  under 
discussion,  are  the  only  cases  which  bear  upon  the  subject.  We  feel  that 
Lord  Denman  and  Lord  Campbell  are  high  authorities  upon  this  or  any 
other  matter,  and  are  both  equally  entitled  to  the  respect  of  this  court ;  but 
we  are  bound  to  pronounce  our  own  judgment,  and,  after  the  most  careful  con- 
sideration, are  of  opinion  that  the  judgment  ought  to  be  for  the  plaintiffs  in 
error.     The  result  is,  that  the  judgment  of  the  court  below  must  be  reversed." 

8  Angell  &  Ames  Corp.  §§  704,  705. 

*  Howard  v.  Gage,  6  Mass.  462,  464. 

6  Evans  v.  Heart  of  Oak  Benefit  Society,  12  Jur.  n.  s.  163.  Mandamus  is 
the  proper  remedy  to  compel  the  former  officers  of  a  corporation  to  surrender 
to  the  newly  elected  board  of  officers,  the  books  and  papers  of  the  company, 
together  with  all  the  insignia  of  office  properly  belonging  to  them.  American 
Railway  Frog  Co.  v.  Haven,  101  Mass.  398.  The  general  scope  and  operation 
of  this  remedy  is  here  very  ably  and  learnedly  discussed  by  Mr.  Justice  Ames; 
8.  c.  1  Redf.  Am.  Railw.  Cas.  479. 
[*637J 


§  154.]         MANDAMUS   TO   COMPEL   COMPLETION   OF   ROAD.  G89 

*  SECTION   IV. 
Mandamus  to  co7npel  Compani/  to  complete  Road. 


1.  Englisli  courts  formerly  required  com- 
pany liaving  a  general  grant  to  com- 
plete its  road. 


2.  Otlicrwise  now,  unless  under  peculiar 

circumstances. 

3.  Mandamus  to  compel  company  to  oper- 

ate its  road. 


§  154.  1.  The  English  courts  at  one  time,  it  would  seem,  re- 
garded a  parliamentary  grant  to  and  acceptance  by  a  railway  com- 
pany as  equivalent  to  an  agreement  on  their  part  to  build  the 
road.  To  make  this  intelligible  to  the  American  reader  it  is  ne- 
cessary to  keep  in  mind  the  English  parliamentary  rules,  in  regard 
to  passing  acts  of  incorporation  of  such  companies.  The  promot- 
ers are  re(iuired  to  jirepare  plans  and  sections,  and  maps  of  their 
roads,  with  the  line  delineated  thereon,  so  as  to  show  its  general 
course  and  direction,  and  to  deposit  copies  of  the  same  with  the 
clerks  of  the  peace,  in  the  office  of  the  Board  of  Trade,  the  Pri- 
vate Bill  Office,  in  certain  cases  at  the  Board  of  Admiralty,  and 
with  the  parish  clerk  of  each  parish  through  which  the  proposed 
line  passes,  before  parliament  assembles,  and  the  plans  are  usually 
referred  to  in  the  charter  as  defining  the  course  of  such  railway, 
and  thus  become  binding  upon  the  company,  although  not  so  re- 
garded unless  so  referred  to.^  Specific  notice  too  is  to  be  served 
upon  each  land  proj)rictor  whose  land  is  to  be  taken. ^  Tlicre  is 
therefore  some  plausibility  in  regarding  the  obtaining  of  a  charter 
under  these  circumstances  as  a  binding  obligation  on  the  i)art  of 
the  company  that  they  will  build  the  road.  No  act  of  incorjiora- 
tion  of  a  railway  is  passed  in  the  British  parliament  until  tlirce- 
fourths  of  the  estimated  outlay  is  subscribed.  Accordingly,  in 
some  of  the  earlier  cases  upon  this  sul)ject,  after  considerable  dis- 
cussion and  examination,  it  is  laid  down,^  that  Avhcn  a  railway 

^  Hodges  Riiilw.  18,  and  notes;  Xortli  British  Railway  Co.  v.  Tod,  5  Bill 
Ap.  Cas.  181;  s.  c.  i  Railw.  Cas.  449;  Regina  v.  Caledonian  Railway  Co.,  3 
Eng.  L.  &  Eq.  28."). 

2  Queen  r.  York  &  Xortli  Midhuul  Railway  Co.,  IG  Q.  B.  19;  s.  c  10  Eng. 
L.  &  Eq.  299.  This  was  decided  by  a  divided  court,  Eri.e,  J.,  dis^senting, 
whose  opinion  ultimately  prevailed  in  the  Exchequer  Chamber.  Lord  Camp- 
bell, and  the  majority  of  the  court,  founded  their  opinion  chiefly  on  the  cele- 
brated judgment  of  Lord  Eldon,  in  Blakcmore  r.  Glamorganshire  Canal 
VOL.  1.-44  [*G38] 


GOO  MANDAMUS.  [PART   VII. 

company  have  obtained  an  act  of  parliament,  *  reciting  that  the 
proposed  railway  will  be  beneficial  to  the  public,  and  that  the 
company  are  willing  to  execute  it,  and  giving  them  compulsory 
powers  upon  landholders  for  that  purpose,  and  in  pursuance  of 
such  powers  the  company  have  taken  land,  and  made  part  of  their 
line,  they  are  bound  by  law  to  complete  such  line,  not  only  to 
the  extent  to  which  they  have  taken  lands,  but  to  the  furthest 
point.  And  this  is  so  held  in  some  cases,  although  the  statute 
enacts  only  that  it  shall  be  lawful  for  them  to  make  the  railway. 

2.  So  also  in  another  case,^  where  the  undertaking  was  not  yet 
entered  upon,  it  was  held  that  the  company  under  such  circum- 
stances were  bound  to  execute  the  work,  from  the  time  when 
such  act  receives  the  royal  assent.  And  in  another  case,*  where 
by  the  return  to  the  writ  it  appeared  that  the  company  had  no 
sufficient  funds  to  build  the  road,  and  that  the  period  for  exercis- 
ing their  compulsory  powers  in  obtaining  lands  had  expired,  and 
that  the  building  of  the  road  had  thus  become  impossible,  it  was 
held  that  a  mandamus  must  nevertheless  be  awarded.  Writs 
of  peremptory  mandamus  issued  in  each  of  the  foregoing  cases. 
But  the  first  and  last  of  these  three  cases  came  before  the  Ex- 
chequer Chamber,  and  were  heard  at  great  length  before  all  the 
judges,  and  an  elaborate  opinion  delivered  by  Jervis,  C.  J.,  of  the 
Common  Bench,  reversing  the  judgment  of  the  Queen's  Bench, 
chiefly  on  the  ground  that  there  was  no  implied  obligation  upon 
the  company,  either  before  or  after  entering  upon  the  work,  to 
complete  it.^  (a) 

Navigation,  1  Myl.  &  K.  154.  See  also  Regina  v.  Ambergate  Railway  Co., 
23  Law  T.  24G;  s.  c.  17  Q.  B.  362,  9.57;  Regina  v.  Eastern  Counties  Railway 
Co.,  1  Railw.  Cas.  509.  But  the  writ  was  held  defective  in  this  case,  in  not 
alleging  that  the  company  had  abandoned  or  unreasonably  delayed  the  work. 
Regina  v.  Eastern  Counties  Railway  Co.,  2  Railw.  Cas.  2G0;  s.  c.  10  A.  &  E. 
531 ;  2  Q.  B.  347,  569. 

8  Regina  v.  Lancashire  &  Yorkshire  Railway  Co.,  7  Railw.  Cas.  2G6;  s.  c. 
16  Eng.  L.  &  Eq.  327. 

*  Regina  v.  Great  Western  Railway  Co.,  16  Eng.  L.  &  Eq.  341.  The  ex- 
treme to  which  this  very  questionable  doctrine  was  pushed  in  this  case,  seems 
to  have  proved,  as  is  not  uncommon  in  such  cases,  the  point  of  departure,  for 
its  entire  overthrow  and  abandonment. 

6  York  &  North  Midland  Railway  Co.  v.  Regina,  1  Ellis  &  B.  858;  s.  c.  18 

(a)  Otherwise,   of    course,    where    pany  to  complete  its  road.     See  infra, 
the  act  expressly  requires   the  com-     §  155. 
[*639] 


§  154.]  MANDAMUS   TO    COxMPEL   COMPLETION   OP    ROAD.  G91 

*  3.  This  question  arose  and  was  examined  in  the  courts  of 
New  York,  somewhat,  in  one  case,*^  where  it  was  held  that  a 
railway  corporation,  which  has  completed  its  road  between  the 
terminal  points  named  in  the  charter,  forfeits  its  franchise  by 
abandoning  or  ceasing  to  operate  a  part  of  the  route.  The  rem- 
edy, however,  in  such  cases,  is  not  by  injunction  at  the  suit  of 
the  public,  but  by  mandamus  or  indictment  at  the  election  of 
the  state,  or  by  proceeding  to  annul  the  charter  of  the  corpo- 
ration. (6)  It  is  here  said,  that  it  seems  that  the  corporation 
owes  a  duty  to  the  public  to  exercise  the  franchise  granted  to 
it,  and  that  it  cannot  abandon  a  portion  of  its  road  and  incur  a 
forfeiture  of  that  portion  at  its  mere  pleasure. 

Eng.  L.  &  Eq.  199;  Great  Western  Railway  Co.  v.  Regina,  1  Ellis  &  B.  874. 
These  decisions,  one  of  which  is  given  at  length  in  the  last  section,  seem  to 
have  been  acquiesced  in,  and  they  certainly  conform  to  what  has  ever  been 
regarded  as  the  law  on  that  subject  in  this  country.  And  tlie  same  princij^le 
was  maintained  in  Scottish  Xortheasteru  Railway  Co.  v.  Stewart,  .'}  Macq. 
Ap.  Cas.  382;  s.  c.  5  Jur.  n.  s.  G07.  But  see  Lind  v.  Isle  of  Wight  Ferry 
Co.,  7  Law  T.  n.  s.  416;  ]\rason  v.  Stokes  Bay  Pier  &  Railway  Co.,  11  W.  R. 
80.  It  is  here  held,  that  where  a  notice  from  a  railway  company  to  take  lands 
for  the  purposes  of  their  undertaking  has  been  followed  by  an  award  fixing  the 
amount  of  purchase  and  compensation  money,  the  court  has  jurisdiction  to 
compel  the  company  to  complete  the  purchase,  s.  p.  i\Ietropolitan  Railway 
Co.  V.  Woodhouse,  11  Jur.  n.  s.  296;  s.  c.  34  Law  J.  Ch.  297.  But  see  ex 
parte  Quicke,  13  W.  R.  924;  s.  c.  12  Law  T.  n.  s.  113. 

6  People  V.  Albany  &  Vermont  Railroad  Co.,  24  N.  Y.  261;  s.  c.  37  Barb. 
216. 

(h)  McCann    v.    South    Nashville  &  Oxford   Central   Railroad  Co.,  63 

Railroad  Co.,  2  Tenn.  Ch.  773.     And  ]\Ie.  269.     And  it  will  make  no  differ- 

see  In  re  New  Brunswick  &  Canada  ence  that  employes  are  demanding  a 

Railway  Co.,  1  Pug.  &  B.  667,  where  small   increase  of   wages.     People  v. 

it   is  held   that   mandamus   will   lie  New  York  Central  &  Hudson  River 

to  compel  the  operation  of  the  road  Railroad  Co.,  9  Am.  &  Eng.  Railw. 

by  at  least  one  train  a  day.     See  also  Cas.  1. 
Railroad  Commissioners  v.  Portland 

[*640] 


692 


MANDAMUS. 


[part   VII. 


SECTION  V. 


Cases  in  which  this  is  the  proper  Remedy. 


1.  Compelling  company  to  complete  its 

road  where  the  act  is  imperative. 

2.  Mandamus   more   proper   remedy   in 

such  case  than  injunction. 

3.  Commissioners   of  public   works   not 

subject  to  the  writ. 

4.  Public  duties  of  corporations  enforced 

by  mandamus. 

5.  Facts  tried  by  jury.     Instances  of  this 

remedy. 

6.  Cannot    be   substituted   for  certiorari 

when  that  is  taken  away. 


7.  Issues   to   compel  the   allowance  of 

costs. 

8.  Other  instances  of  its  application. 

9.  Lies  where  the  duty  is  clear  and  no 

other  remedy. 

10.  Not  awarded  to  control  legal  discre- 

tion. 

11.  Nor  to  try  the  legality  of  an  election. 

12.  Lies  to  compel  transfer  of  stock. 

13.  Lies  also  to  compel  a  railway  com- 

pany to  have  damages  estimated 
under  statute. 


§  155.  1.  But  although  it  must  be  regarded  as  now  definitivelj 
settled  that  the  writ  will  not  lie,  in  any  case,  coming  within  the 
categories  laid  down  in  the  foregoing  opinion  of  Jervis,  C.  J.,  yet 
where  the  act  of  the  legislature  is  imperative  upon  the  company  to 
build  their  road,  this  duty  will  still  be  enforced  by  mandamus.^  (a) 

^  Hodges  Railw.  665,  in  note;  Great  Western  Railway  Co.  v.  Regina,  1  Ellis 
&  B.  874;  s.  c.  18  Eng.  L.  &  Eq.  211.  The  land-owners  are  so  far  interested 
in  the  building  of  a  railway  as  to  be  entitled  to  bring  the  petition,  and  differ- 
ent owners  of  land  may  join.  Regina  v.  York  &  North  Midland  Railway  Co., 
16  Eng.  L.  &  Eq.  299.  But  it  has  been  held,  that  a  land-owner  could  not 
apply  for  an  injunction  to  restrain  a  railway  company  from  applying  for  an 
act  of  the  legislature  repealing  a  former  act,  and  to  restrain  them  from  paying 
back  deposits.  Hodges  Railw.  657,  note;  Anstruther  v.  East  Fife  Railway 
Co.,  1  Macq.  Ap.  Cas.  98.  Xor  can  a  land-owner  maintain  a  suit  in  equity 
against  a  company  for  not  completing  its  line,  in  pursuance  of  its  act  of  incor- 
poration. Heathcote  v.  Xorth  Staffordshire  Railway  Co.,  6  Railw.  Cas.  358. 
The  Lord  Chancellor  here  held,  reversing  the  opinion  of  the  Vice-Chancellor, 
that  in  such  case,  a  court  of  equity  will  leave  the  party  to  his  legal  rights. 
Regina  v.  Dundalk  &  Enniskillen  Railway  Co.,  5  Law  T.  n.  s.  25;  Lind  v. 
Isle  of  Wight  Ferry  Co.,  7  Law  T.  n.  s.  416;  State  v.  Hartford  &  New  Haven 
Railroad  Co.,  29  Conn.  538.  And  mandamus  is  the  proper  remedy  by  which 
to  compel  a  canal  company  to  bridge  over  a  private  way  which  it  intersects. 
Habersham  u.  Savannah  &  Ogeechee  Canal  Co.,  26  Ga.  665. 


(a)  It  will  not  lie,  however,  where 
a  portion  of  a  land  grant  has  lapsed 
through  failure  of  the  company  to 
build  that  part  of  the  road  within  the 

[*G40] 


time,  to  compel  the  company  to  build 
it  notwithstanding.  State  v.  Southern 
Kansas  Railroad  Co.,  22  Am.  &  Eng. 
Railw.    Cas.    198.     Where    the   com- 


§  155.]         IN    WHAT    CASES    THIS    IS    THE    I'KOPEIi    REMEDY.  G03 

*  2.  But  it  has  been  held  that  such  pubhc  duty  cannot  be  en- 
forced by  injunction,  at  the  suit  of  the  attorney-general.^  Cor- 
])orations  have  for  a  very  long  time  been  compelled,  by  writ  of 
mandamus  to  perform  duties  imposed  by  statute.^  A  turn{)ike 
comi)any  was  compelled  to  fence  its  road  where  it  passed  through 
the  land  of  private  persons,  and  it  was  held  no  excuse  that  the 
company  had  made  satisfaction  for  the  damages  awarded  to  the 
land-owner,  or  that,  having  completed  their  road,  they  had  no 
funds  with  which  to  build  the  fences.* 

3.  But  it  has  been  held,  that  Commissioners  of  Woods  and 
Forests,  *who  gave  notice  that  they  intended  to  take  certain 
lands,  in  order  to  ascertain  if  they  could  be  obtained  at  a  certain 
price,  and  finding,  by  the  claim  of  the  land-owners,  that  the  land 
could  not  be  obtained,  so  as  to  bring  the  amount  to  be  expended 
within  the  legislative  limit  and  the  funds  at  the  disposal  of  the 
commissioners,  abandoned  their  notice,  could  not  be  compelled 

2  Attorney- General  v.  Birmingham  &  Oxford  Junction  Railway  Co.,  3 
Macn.  &  G.  453 ;  s.  c  7  Eng.  L.  &  Eq.  2b3. 

8  The  Hartford  &  New  Haven  Raih-oad  Co.  was  chartered  to  construct  and 
operate  a  railway  from  Hartford  to  the  navigable  waters  of  the  harbor  of  New 
Haven.  A  steamboat  company  was  afterwards  chaitered  to  run  in  connection 
•with  it  to  New  York;  and  the  railway  and  steamboat  line  constituted  a  route 
that  was  of  great  convenience  to  the  public.  After  the  construction  of  the  road 
and  the  use  of  it  in  connection  with  the  steamboat  line  for  several  jears,  the 
railway  company  constructed  a  track  diverging  from  its  original  track  at  a 
point  a  mile  and  a  half  from  tide-water  and  running  to  the  station  of  the  New 
York  &  New  Haven  Railroad  Co.,  in  the  city  of  New  Haven,  and  discontinued 
the  running  of  its  passenger  trains  to  its  original  terminus  at  tide-water.  This 
change  incommoded  travellers  who  wished  to- pass  by  the  steamboat  route,  of 
whom  there  were  many.  It  was  held,  that  a  mandamus  ought  to  be  issued  to 
compel  the  company  to  run  passenger  trains  to  its  original  terminus,  and  that 
the  mandamus  was  properly  applied  for  by  the  attorney  for  the  state.  State 
V.  Hartford  &  New  Haven  Raihoad  Co.,  29  Conn.  538. 

*  Regina  v.  Trustees  Luton  Roads,  1  Q.  B.  8G0.  Lord  Denm.\x  there  said, 
"The  law  orders  these  parties  to  perform  the  duty  if  they  build  the  road." 
Pattesox,  J.,  said,  "If  they  had  not  adequate  funds  they  ouglit  not  to  have 
made  the  road." 

pany  is  bound  to  make  a  viaduct  over  Wliethorthe  writ  will  issue  to  com- 

its  road  in  a  city,  mandamus  will,  in  pel  company  negligently  cutting  down 

general,  lie  to  compel  the  performance  street  and  blocking  the  way   to   the 

of  that  duty.     Kansas  r.  Missouri  Pa-  plaintiff's  premises,  to  arbitrate,  71/0^^. 

cific    Railway   Co.,  20   Am.    &   Eng.  Quillinan  r.  Canada  Southern  Railway 

Railw.  Cas.  45.  Co.,  G  Ont.  C.  P.  31. 

[♦041,  *G42] 


694  MANDAMUS.  [PART   VII. 

by  mandamus  to  take  the  land,  such  commissioners  acting  in  a 
public  capacity,  although  the  rule  is  otherwise  as  to  private  rail- 
way companies.^ 

4.  Public  duties  of  corporations  have  been  enforced  by  manda- 
mus, as  rc'pairing  the  channel  and  banks  of  a  river,  which,  by 
their  charter,  they  had  been  permitted  to  alter.^  Also  to  make 
alterations  in  the  sewers  of  a  city ;  and  where,  in  the  act  of 
parliament,  this  duty  is  defined,  "  to  make  such  alterations  and 
amendments  in  the  sewers  as  may  be  necessary  in  consequence 
of  the  floating  of  the  harbor,"  it  was  held  this  was  a  proper  form 
for  the  command  of  the  writ.'^  Also  to  restore  a  highway,  inter- 
sected by  a  railway,  to  its  former  width.^  (5) 

5  Regina  v.  Woods  and  Forests  Commissioners,  15  Q.  B.  761;  supra,  §  88. 

6  Regina  r.  Bristol  Dock  Co.,  1  Railw.  Cas.  548;  2  Q.  B.  64;  2  Railw.  Cas. 
599.  A  return  that  the  law  imposed  no  such  duty,  but  that  they  had  per- 
formed it,  "as  near  as  circumstances  permitted,"  is  insufficient,  as  being  a 
traverse  of  the  law  or  an  evasion  of  the  writ.  Regina  v.  Caledonian  Railway 
Co.,  16  Q.  B.  19;  s.  c.  3  Eng.  L.  &  Eq.  285. 

''  King  V.  Bristol  Dock  Co.,  6  B.  &  C.  181.  Mandamus  is  the  appropriate 
remedy  to  compel  a  delinquent  municipal  corporation  to  discharge  its  liabilities 
under  a  subscription  to  stock  of,  or  a  loan  of  its  credit  to,  a  railway  corapany. 
Commonwealth  v.  Perkins,  43  Penn.  St.  400.  A  declaration  for  a  mandamus 
to  levy  a  rate  to  pay  a  debt  is  good,  though  it  does  not  state  the  amount  of  the 
debt.  Ward  v.  Lowndes,  6  Jur.  n.  s.  247;  s.  c.  29  Law  J.  Q.  B.  40;  Ellis  & 
E.  940.  But  see  McCoy  v.  Harnett  County,  5  Jones  N.  C.  205.  But  in  Ex 
parte  Austin,  13  Law  T.  n.  s.  443,  it  was  held  that  the  court  will  not  in  the 
first  instance  grant  a  rule  for  a  mandamus  calling  on  a  public  officer  to  make 
a  rate  for  the  payment  of  costs  due  to  a  successful  appeal  against  a  rate  which 
had  been  quashed  at  quarter  sessions.  After  the  order  for  payment  of  costs  is 
found  good,  if  it  is  still  disobeyed,  a  mandamus  may  be  called  for.  Ex  parte 
Austin,  supra.  See  People  v.  Mead,  24  N.  Y.  114.  Mandamus  will  lie  to  com- 
pel a  town  committee  to  paj'  land-owners  their  damages  for  lands  taken  for  a 
highway.  Minhinnah  v.  Haines,  29  N.  J.  Law,  388;  State  v.  Keokuk,  9  Iowa, 
438.  And  see  State  v.  County  Judge,  12  Iowa,  237;  State  v.  Davenport,  12 
Iowa,  335;  Knox  County  v.  Aspinwall,  24  How.  376;  Uniontown  r.  Common- 
wealth, .34  Penn.  St.  293;  Commonwealth  v.  Pittsburg,  34  Penn.  St.  496. 

8  Regina  v.  Birmingham  &  Gloucester  Railway  Co.,  2  Railw.  Cas.  694;  2 
Q.  B.  47;  Regina  v.  Manchester  &  Leeds  Railway  Co.,  1  Railw.  Cas.  523;  3 
Q.  B.  528;  2  Railw.  Cas.  711.  But  in  some  cases  it  is  requisite  that  the  duty 
be  strictly  defined.  Regina  v.  Eastern  Counties  Railway  Co.,  3  Railw.  Cas. 
22;  2  Q.  B.  569. 

(h)  And   where  the   company    has  should  point  out  in  what  the  company 

elected  to  pursue  a  mode  of  restora-  has    failed,   and    direct    particularly 

tion   which   is   insufficient,   the  writ  what  is  to  be  done.      New  York  v. 
[*642] 


§  155.]         IN    WHAT   CASES   THIS   IS   THE    PROPER    REMEDY.  695 

*  5.  In  the  English  practice,  questions  of  fact,  arising  on  a 
mandamus,  are  tried  by  a  jury.^  So  a  railway  company  may  by 
mandamus  be  required  to  establish  a  uniform  rate  of  tolls. ^'^  (c) 
And  also  to  proceed  in  the  appraisal  of  land  damages,  after  giving 
notice  to  treat.^^  So  the  sheriff  or  ofilicer  who  holds  the  iiKpiisi- 
tion,  may  be  compelled  to  proceed  where  he  has  no  legal  excuse, 
as  where  sucli  onicer  assumed  to  direct  a  verdict  against  the  claim, 
on  the  ground  the  applicant  could  not  recover.^^ 

^  Regina  v.  London  &  Birmingham  Railway  Co.,  1  Railw.  Cas.  317;  Re- 
gina  r.  Manchester  &  Leeds  Railway  Co.,  3  Q.  B.  528;  s.  c.  2  Railw.  Cas. 
711;  Regina  r.  Newcastle-npon-Tyne,  1  East,  111. 

^^  Clarke  v.  Leicestershire  &  Northamptonshire  Union  Canal,  G  Q.  B.  898. 
But  in  this  case  judgment  was  given  for  defendant,  by  reason  of  the  "  insuffi- 
ciency of  the  writ." 

^1  Supra,  §§  88,  99,  et  seq.,  and  cases  there  cited. 

12  Walker  v.  London  &  Blackwall  Railway  Co.,  3  Q.  B.  744.  In  Carpenter 
V.  Bristol,  21  Pick.  258,  where  county  commissioners  refused  to  assess  dam- 
ages sustained  in  consequence  of  constructing  a  railway,  on  the  ground  that 
the  party  applying  did  not  own  the  land,  and  also  refused  to  grant  a  warrant 
for  a  jury  to  revise  their  judgment,  as  required  by  Rev.  Sts.  c.  39,  §  5G,  it 
was  held  that  the  party  was  entitled  to  a  jury  to  revise,  and  that  a  manda- 
mus would  lie  to  compel  the  commissioners  to  grant  a  warrant.  The  court 
said:  "Where  application  was  made  to  county  commissioners  to  estimate 
damages  caused  by  the  laying  out  of  a  railway,  turnpike,  or  highway,  the  duty 
required  of  them  would  be  a  judicial  duty.  If  they  refused  or  neglected  to 
perform  it,  this  court  would  issue  a  mandamus  commanding  them  to  do  it; 
that  is,  to  exercise  their  judgment  on  the  matter.  Rut  when  they  had  per- 
formed this  duty,  it  being  within  their  discretion,  no  other  tribunal  would 
have  aright  to  interfere  with  or  complain  of  the  manner  in  which  they  had 
performed  it."  So  also  in  Chicago,  Burlington,  &  Quincy  Railway  Co.  r. 
Wilson,  17  111.  123,  it  was  held,  tliat  on  application  to  a  judge  to  appoint 
commissioners  to  condemn  land  for  the  use  of  a  railway,  lie  is  compellable  to 
act,  if  a  case  is  made  under  the  .statute,  — that  his  duty  is  ministerial,  and 
not  judicial,  and  may  be  enforced  by  mandamus. 

Dutchess  &  Columbia  Railroad   Co.,  receiver.     State  i*.  Marietta  &  Cincin- 

58   N.   Y.  1.02.      So  mandamus  will  nati  Railroad  Co.,  3.")  Ohio  St.  154. 

issue  to  compel  the   construction  of  Nor    to  compel   a   carrier   to   carry 

fences  and  cattle-guards  pursuant  to  freight.     There  is  a  remedy  by  action, 

statute.      New  York  i'.    Rochester  &  People  r.    New  York,   Lake   Erie,  & 

State  Line  Railway  Co.,   70   N.   Y.  Western  Railroad  Co.,  2  N.  Y.  Civil 

294.  Proc.  82.     Nor  to  enforce  a  contract 

(c)  ^landamus  will  not  issue  direct-  with  the  company.     State  v.  Paterson 

ing  the  manner  of  operating  a  road  &  Newark  Railroad  Co.,  10  Am.  & 

where  the  road  is  in  the  hands  of  a  Eng.  Railw.  Cas.  334. 

[*643J 


696  MANDAMUS.  [PART    VII. 

6.  But  where  the  statute  in  terms  takes  away  the  remedy  by 
certiorari,  the  court  will  not  indirectly  accomplish  the  same  thing 
by  mandamus.^^ 

7.  A  mandamus  was  awarded  requiring  the  presiding  officer 
to  allow  costs  in  a  case  before  him,^*  for  assessing  land  damages, 
including  witnesses,  attendance  by  attorney  at  the  inquest,  *  con- 
ferences and  briefs,  but  not  the  expenses  of  surveyors,  as  such. 

8.  And  where  the  commissioners  refused  to  assess  the  value 
of  land  taken  for  a  railway,  on  the  ground  that  the  prosecutor 
had  no  title  to  the  same,  it  was  held  that  he  is  entitled  to  have 
their  judgment  revised  by  a  jury,  and  a  mandamus  will  lie,  on 
his  behalf,  to  compel  the  commissioners  to  grant  a  warrant  for 
a  jury.i^  And  a  mandamus  will  issue,  at  the  suit  of  supervisors 
of  a  town,  to  compel  a  railway  to  build  a  highway ,^^  or  bridge,^'^ 
for  public  use.  (c7) 

13  King  V.  Justices  of  West  Riding  of  Yorkshire,  1  A.  &  E.  563. 

"  King  V.  Justices  of  the  City  of  York,  1  A.  &  E.  828;  Regina  v.  SherifE  of 
Warwickshire,  2  Railw.  Cas.  661. 

15  Carpenter  f.  Bristol,  21  Pick.  258.  See  Smith  v.  Boston,  1  Gray,  72;  s.  p. 
Fotherby  v.  Metropolitan  Railway  Co.,  Law  Rep.  2  C.  P.  188. 

i"  Whitmarsh  Township  v.  Philadelphia,  Germantown,  &  Norristown  Rail- 
road Co.,  8  Watts  &  S.  365. 

"  Cambridge  y.  Charlestown  Branch  Railroad  Co.,  7  IMet.  70. 

((/)  And  mandamus  will  issue  at  Ham  v.  Toledo,  Wabash,  &  W^estern 
suit  of  the  company  to  compel  county  Railway  Co.,  29  Ohio  St.  174.  And 
supervisors  to  subscribe  to  stock  iu  to  compel  payment  where  payment  is 
the  company  pursuant  to  vote  of  the  refused  on  presentment  without  a 
county.  People  v.  Logan  County,  63  warrant.  State  v.  Craig,  69  Mo.  565. 
111.  374.  But  see  People  v.  Cass  And  a  delay  of  nearly  six  years  in  ap- 
County,  77  111.  438.  But  not  to  com-  plying  for  the  writ  to  compel  the  issue 
pel  the  county  to  deliver  bonds  to  be  of  bonds  may  not  be  fatal.  State  v. 
issued  in  payment  of  such  subscrip-  Jennings,  48  Wis.  549.  So  it  will 
tion  until  the  supervisors  have  sub-  issue  to  compel  county  commissioners 
scribed.  People  v.  Pueblo  County  to  levy  a  tax  to  pay  a  stock  subscrip- 
Commissioners,  2  Col.  360.  It  will  tion.  Decatur  County  Commissioners 
lie  to  compel  issuance  of  bonds,  v.  State,  12  Am.  &  Eng.  Raihv.  Cas. 
Atchison,  Topeka,  &  Santa  Fe  Rail-  604 ;  State  v.  Rainey,  7  Am.  &  Eng. 
road  Co.  w.  Jefferson  County  Commis-  Railw.  Cas.  183.  But  see  Railroad 
sioners,  12  Kan.  127;  Santa  Cruz  Co.  y.  Olmstead,  46  Iowa,  310,  where 
Railroad  Co.  r.  Santa  Cruz  County  it  is  held  that  when  the  tax  is  voted 
Commissioners,  02  Cal.  239;  Chicago,  and  certified  no  further  levy  is  re- 
Danville,  &  Vincennes  Railroad  Co.  quired.  So  the  writ  will  issue  to  com- 
V.   St.   Anne,  101  111.    151.      But  see  pel   a   levy   to  pay    bonds.       Greene 

[*644] 


§  155.]         IN    WHAT   CASES   THIS    IS   THE    PROPER   REMEDY.  G97 

9.  No  better  general  rule  can  be  laid  down  upon  this  subject 
than  that  where  the  charter  of  a  corporation,  or  the  general  stat- 
ute in  force  and  applicable  to  the  subject,  imposes  a  specific  duty, 
either  in  terms  or  by  fair  and  reasonable  construction  and  impli- 
cation, and  there  is  no  other  specific  or  adequate  remedy,  the  writ 
of  mandamus  will  be  awarded.  But  if  the  charter,  or  the  general 
law  of  the  state,  affords  any  other  specific  and  adequate  remedy,  it 
must  be  pursued.^^ 

10.  So,  too,  it  must  be  a  complete  and  perfect  legal  right,  or 
the  court  will  not  award  the  writ.'^  And  the  writ  of  mandamus 
is  *  never  awarded  to  compel  the  officers,  or  visitors  of  a  corpo- 
ration, who  have  discretionary  powers,  to  exercise  such  powers 
according  to  the  requisitions  of  the  writ,  but  to  compel  them  to 

"  Rex  r.  Nottingham  Old  Waterworks,  6  A.  &  E.  355;  Dundalk  Western 
Railway  Co.  i\  Tapster,  1  Q.  B.  GG7;  Corrigal  v.  London  &  Hlackwall  Railway 
Co.,  3  Railw.  Cas.  411 ;  People  v.  New  York,  3  Johns.  Cas.  79;  Louisville  &  New 
Albany  Railway  Co.  v.  State,  25  Ind.  177;  People  v.  Hatch,  33  111.  9.  It  seems 
to  be  considered,  that  quo  warranto  will  not  lie  to  an  eleemosynary  corporation, 
and  therefore  mandamus  is  the  necessary  remedy  to  correct  abuses.  2  Kyd  Corp. 
337,  note  a.  In  King  v.  Gower,  3  Salk.  230,  it  was  held  mandamus  was  not  the 
proper  remedy  to  try  the  right.  Rex  v.  Bank  of  England,  Doug.  524;  Ship- 
ley V.  Mechanics'  Bank,  10  Johns.  484;  State  r.  Holiday,  3  Halst.  205;  Asvlura 
V.  Phoenix  Bank,  4  Coini.  172.  Unless  the  rights  of  the  stockholders  in  this 
respect  are  restricted  by  the  charter  of  the  corporation,  or  by  its  rules  and  by- 
laws passed  in  conformity  thereto,  stockholders  have  a  right  of  access  at  rea- 
sonable hours  to  the  proper  sources  of  information,  to  know  how  the  affairs  of 
the  corporation  are  conducted;  and  if  such  access  is  refused,  mandamus  is  the 
appropriate  remedy  to  enforce  the  right.  Cockburn  v.  Union  Bank,  13  La. 
An.  289.  See  also  People  v.  Haws,  34  Barb.  69;  Lamb  v.  Lynd,  44  Penn.  St. 
33G.  But  see  Ex  parte  Briggs,  1  Ellis  &  E.  881 ;  s.  c.  28  Law  J.  Q.  B.  272, 
where  the  assertion  of  the  right  to  inspect  accounts  is  somewhat  modified. 

^^  Rex  V.  Archbishop  of  Canterbury,  8  I-^ast,  213;  People  f.  Collins.  19 
Wend.  50;  1  Wend.  318;  Ex  parte  Napier,  18  Q.  B.  G92;  s.  c.  12  Eng.  L.  & 
Eq.  451. 

County  r.  Daniel,  102  U.  S.  187;  At-  United   States  v.   Lincoln  County,   5 

chison,  Topeka,  &  Santa  Fe  Railroad  Dil.     184.      But    see    Ralls    County 

Co.    V.    Jefferson    County    Commis-  Court  v.  United  States,  105  U.  S.  733. 

sioners,    12   Kan.    127.     But  sefe  Ex  So  it  will  issue  to  compel  a  town  col- 

parte  Rowland,  104  U.  S.  G04.     Or  to  lector  to  pay  over  money  collected  to 

compel  payment  of  a  warrant  issued  pay  a  subscription  to  stock,  though  he 

for   a  judgment.      United  States  v.  ha.s  wrongfully  paid  over  to  n  snper- 

Yernon    Countv   Court,   3   Dil.    281;  visor.    People  r.  Brown,  55  N.  Y.  180. 

[•^45] 


698  MANDAMUS.  [PART   VII. 

proceed  and  exercise  them  according  to  their  own  judgment,  in 
cases  where  they  refuse  to  do  so.'-^*^  And  it  may  be  laid  down  as 
a  general  rule,  that  where  any  officers,  or  boards,  have  a  legiti- 
mate discretion,  and  are  acting  within  their  appropriate  jurisdic- 
tion, they  cannot  be  controlled  in  their  action  by  mandamus, 
issuing  from  a  superior  court.^^  (e)  If  the  visitor  or  trustee  be 
himself  the  party  interested  in  the  exercise  of  the  function,  it  is 
said  to  form  an  exception.^ 

20  Rex  V.  Bishop  of  Ely,  1  Bl.  81;  Regina  v.  Chester,  15  Q.  B.  513;  Apple- 
ford's  Case,  1  Mod.  82.  Lord  Hale's  opinion  cited  with  approbation  by  Lord 
Campbell,  15  Q.  B.  520;  Rex  v.  Bishop  of  Ely,  2  T.  K.  29U;  Murdock's  Ap- 
peal, 7  Pick.  322;  Parker,  C.  J.,  in  Attala  County  v.  Grant,  9  Sm.  &  M.  77; 
Towle  V.  State,  3  Fla.  202;  2  Q.  B.  433;  Ex  parte  Benson,  7  Cow.  363,  and 
cases  cited;  People  v.  Columbia  Common  Pleas,  1  Wend.  297.  But  the  officers 
of  a  municipal  corporation  will  be  compelled  to  hold  a  court  for  the  revision  of 
the  list  of  burgesses,  although  the  time  for  holding  the  same,  in  compliance  with 
the  terms  of  the  statute,  has  elapsed,  and  although  the  mayor,  at  the  time  of 
granting  the  mandamus,  was  not  the  same  person  who  acted  at  the  court. 
Regina  r.  Rochester,  7  Ellis  &  B.  910;  s.  c.  30  Law  T.  73.  But  it  was  held,  in 
Heffner  v.  Commonwealth,  28  Penn.  St.  108,  that  the  plaintiff  to  be  entitled  to 
the  writ  must  show  a  specific  legal  right,  which  had  been  infringed,  and  an  in- 
jury different,  not  only  in  amount  or  degree  but  in  kind,  from  that  which  falls 
upon  the  public  in  general;  that  the  damage  suffered  by  him,  in  common  with 
other  citizens,  by  the  neglect  of  a  municipal  corporation  to  lay  out  an  alley,  al- 
though as  his  land  lying  adjacent  he  was  specially  exposed  to  suffer  loss  by  the 
neglect,  would  not  entitle  him  to  demand  the  writ;  that  for  the  redress  of  an 
omission  of  duty  affecting  only  the  public  interest  and  that  of  individuals  in- 
cidentally, the  suit  should  be  prosecuted  by  some  public  officer.  So,  also, 
where  the  party  is  entitled  to  costs  in  a  proceeding  before  commissioners  to 
estimate  land  damages  against  a  railway,  unless  the  duty  to  award  such  costs 
is  one  which  is  plain  and  obvious,  it  will  not  be  enforced  by  writ  of  manda- 
mus. Ex  parte  Morse,  IS  Pick.  448.  And  the  court  will  not  grant  a  manda- 
mus requiring  parish  officers  to  receive  a  pauper  in  obedience  to  an  order  of 
removal,  the  proper  course  being  by  indictment.  Ex  parte  Dowuton,  2  Ellis 
&  B.  8.-)6. 

21  Waterbury  v.  Hartford,  Providence,  &  Fishkill  Railroad  Co.,  27  Conn. 
146. 

22  Regina  v.  Dean  and  Chapter  of  Rochester,  17  Q.  B.  1 ;  s.  c.  6  Eng.  L. 
&  Eq.  269. 

((?)  Ex  parte  Railway  Co.,  101  U.  S.  self  disqualified  from  hearing  by  rea- 

711.     And  see  State  v.  Van  Xess,  15  son  of  relation  of  his  wife  to  a  party 

Fla.  317,  where  it  is  held  that  man-  in    interest.       See    also    Chicago    & 

danius  will  not  lie  to  compel  a  judge  Xorthwestern  Railway  Co.  v.   Genes- 

to  hear  a  case  which  he  has  held  him-  see  Circuit  Judge,  40  Mich.  168. 
[*645] 


§  155.]         IN    WHAT   CASES   THIS    IS   THE   PROPER   REMEDY.  699 

*  11.  But  ill  one  casc,^  it  is  said  to  be  an  inflexible  rule  of  law, 
that  where  a  person  has  been  de  facto  elected  to  a  corporate  office, 
and  has  accepted  and  acted  in  the  office,  the  validity  of  the  elec- 
tion and  the  title  to  the  office  can  only  be  tried  ])y  proceeding  on  a 
quo  warranto  information.  A  mandamus  Avill  not  lie,  unless  the 
election  can  be  shown  to  be  merely  colorable.  But  where  the  right 
is  clear,  or  where  the  old  board  refuse  to  surrender  to  the  newly 
elected  one,  without  any  color  of  excuse,  the  new  board  may  be 
put  in  possession  of  the  insignia  or  functions  of  office  by  writ  of 
mandamus,  or,  as  held  in  some  of  the  states,  by  bill  in  equity.-^  (/) 

12.  And  this  is  the  proper  remedy  to  compel  a  corporation  to 
allow  the  transfer  of  stock  upon  their  books,^^  or  the  company 
may  be  compelled  to  pay  damages  for  such  refusal  by  an  action 
at  law.^ 

13.  It  was  held  in  a  Colonial  Appeal  to  the  Privy  Council,  that 
where  the  company  proceeded  to  build  one  of  their  bridges  so 
near  a  toll-bridge  across  the  same  water  as  to  lessen  the  value  of 
the  latter,  without  taking  any  steps  to  have  such  damage  estimated 
under  the  statutory  provision  in  such  cases,  that  this  did  nut  so 
render  the  company  wrongdoers  as  to  subject  them  to  the  ordin- 
ary action  at  law,  which  would  have  been  the  proj)cr  remedy,  but 
for  the  statutory  one.  It  was  said  the  owner  of  the  toll-bridge 
may  have  a  writ  of  mandamus  to  compel  the  company  to  proceed 
and  have  the  damage  assessed  under  the  statute.^*^  (y) 

28  Regina  v.  Chester,  5  Ellis  &  B.  531;  s.  c.  34  Eiig.  L.  &  Eq.  59. 

2-»  Dart  V.  Houston,  22  Ga.  500. 

2S  Helm  V.  Swiggett,  12  Iiid.  191.  But  where  a  shareholder  executed  a 
transfer  of  his  shares,  wliich  he  took  together  with  the  certificate  of  his  shares 
to  the  company's  office  for  registration,  and  left  the  transfer,  but  refused  to 
leave  the  certificate  for  the  inspection  of  the  directors,  it  was  held  that  the 
court  would  not  compel  the  company  to  register  the  transfer.  In  re  East 
Wheal  ]Mart]ia  Mining  Co.,  33  Beav.  119. 

25  Jones  r.  Stanstead  &  Shefford  Chambly  Railway  Co.,  Law  Rep.  1  V.  C. 
98;  8  Moore  P.  C.  312. 

(/)     Mandamus  will  not  lie  where  {g)  The  company  not  being  bound 

a  member  of  a  corporation  has  been  when  it  is  in  possession  to  institute 

excluded  for  four  successive  meetings  proceedings  to  condemn,  mandamus 

from  speaking  or  voting,   to  restore  will  not  lie   to  compel  it.     Smith  v. 

him  to  his  rights.      Crocker  v.   Old  Chicago  &  ^Uton  Railroad  Co.,  67  111. 

Soutli  Church,  106  Mass.  489.  191. 

[*646] 


700 


MANDAMUS. 


[part   VII. 


SECTION  VI. 


Proper  Excuses,  or  Returns  to  the  Writ. 


1.  Return  that  powers  of  company  had 
expired  at  date  of  writ,  good. 

2  So  of  return  of  want  of  funds  to  per- 
form duty. 

3.  Otherwise  of  return  that  road  is  not 

necessary,  or  would  not  be  remun- 
erative. 

4.  Part  of  return  may   be  quashed  and 

answer  required  to  remainder. 


5.  Counsel  for  petitioner  entitled  to  open 

and  close. 
G.  Return  of  want  of  power  to  do  the  act 

required  bj'  the  cliarter  is  bad. 

7.  Peremptory    writ    cannot    issue    till 

whole  case  tried. 

8.  Court  will  not  quash  return  summarily. 

9.  Non-con)pIiance  with  peremptory  writ 

admits  of  no  excuse. 


§  156.  1.  It  seems  to  be  an  unquestionable  answer  to  the  vrrit 
of  mandamus  to  compel  the  company  to  complete  their  road, 
that  the  time  for  taking  lands  under  the  act  had  expired  at  the 
time  of  issuing  the  alternative  writ,  so  that  it  had  become  impos- 
sible to  build  the  road,  as  required  in  the  writ.^  But  where,  at  the 
*  time  of  the  service  of  the  alternative  mandamus,  the  company 
had  time  to  institute  compulsory  proceedings  for  taking  lands,  it 
was  held,  that  if,  instead  of  doing  so,  they  attempted  to  defend 
the  writ,  and  failed,  it  was  at  their  peril,  and  the  court  would  not 
excuse  them,  upon  the  ground  that  in  the  mean  time  their  com- 
pulsory powers  had  expired.'-^ 

1  Regina  v.  London  &  Northwestern  Railway  Co.,  16  Q.  B.  864;  s.  c.  6  Eng. 
L.  &  Eq.  220,  denying  the  authority  of  Regina  v.  Birmingham  &  Gloucester 
Railway  Co.,  2  Q.  B.  47,  on  this  point,  as  justifying  the  writ.  In  the  former 
case  it  was  held,  that  the  prosecutors  were  guilty  of  laches  in  not  sooner 
applying  for  the  wi-it.  But  a  plea  that  the  cause  of  action  did  not  accrue 
within  six  years  is  a  bad  plea  to  a  declaration  for  a  mandamus,  as  the  statute 
of  limitations  does  not  bar  an  action  for  such  a  writ.  Ward  v.  Lowndes,  6 
Jur.  N.  s.  247;  s.  c.  1  Ellis  &  E.  940,  95G;  2  Ellis  &  E.  419;  29  Law  J.  Q.  B. 
40. 

2  Regina  v.  York,  Newcastle,  &  Berwick  Railway  Co.,  16  Q.  B.  886;  s.  c. 
6  Eng.  L.  &  Eq.  259;  Regina  v.  Lancashire  &  Yorkshire  Railway  Co.,  10  Q.  B. 
90G;  s.  c.  6  Eng.  L.  &  Eq.  265;  Regina  r.  Great  Western  Railway  Co.,  1  Ellis 
&  B.  263,  744;  s.  c.  18  Eng.  L.  &  Eq.  364.  In  this  case  it  was  held,  tliat  the 
return  must  show  that  the  company's  compulsory  powers  for  taking  land  had 
expired,  and  thatwthey  could  not  obtain  the  necessary  land  without  exercising 
those  powers.  Where,  on  motion  for  mandamus  to  compel  the  company  to 
build  a  bridge,  it  was  stated  on  behalf  of  the  company  that  it  could  not  build 
it  without  purchasing  additional  land,  and  that  its  powers  for  that  purpose 

[*647] 


§  156.]  PROPER    EXCUSES,   OR   RETURNS   TO   TUK    WKIT.  7(Jl 

2.  And  where  it  was  altcmjjted  to  defend  ajraiust  the  writ,  on 
the  ground  tliat  it  was  not  shown  that  the  company  had  funds, 
the  court  said,  in  the  last  case  referred  to  :  "  We  shall  presume 
that  the  company  have  funds."  But  it  would  seem  that  the  want  of 
funds,  and  of  the  ability  to  obtain  them,  if  shown  on  the  return  to 
the  alternative  mandamus,  might  be  an  excuse.^  And  the  com- 
pany *  are  not  estopped  from  making  this  plea  by  reason  of  hav- 
ing, in  some  instances,  exercised  their  compulsory  ])owers  of 
taking  land.* 

3.  But  it  is  no  sufhcicnt  excuse  that  the  road  has  become  un- 
necessary, or  that  it  would  not  prove  remunerative,  or  that,  in  all 
reasonable  probability,  the  funds  which  will  come  to  the  hands 
of  the  company  will  i)rove  inadequate  to  the  completion  of  the 
work.^ 

4.  By  the  English  statute  the  court  may  quash  part  of  a  return 
to  the  writ  which  is  bad  in  law,  and  put  the  prosecutor  to  plead 
to  or  traverse  the  remainder.     But  if  the  grounds  of  defence  to 

had  expired,  and  the  prosecutor  stated  that  it  could  build  it  without  taking 
additional  land,  it  was  held  that  an  alternative  writ  of  mandamus  should  issue 
to  the  company,  and  that  it  might  roturn  its  inability  from  want  of  j^ower  to 
purchase  land.  Regina  v.  Dundalk  &  Knniskillen  Railway  Co.,  5  Law  T. 
N.  s.  25.  Where  mandamus  was  issued  to  a  railway,  reciting  that  premises 
in  the  occupation  of  B.  had  been  injuriously  affected  by  the  works  of  the 
company,  and  that  the  company  having  declined  to  join  in  the  appointment  of 
an  arbitrator  to  estimate  the  damage  to  B.,  lie  had  appointed  an  arbitrator, 
who  had  duly  made  liis  award,  and  commanding  the  company  to  take  up  his 
award,  and  the  company  returned  that  B.  also  occupied  other  lands  that  were 
taken  by  the  company,  and  that,  before  the  execution  of  their  works,  it  was 
agreed  between  him  and  the  company  that  the  company  should  pay  to  liim  a 
certain  sum  in  satisfaction  of  the  lands  so  taken,  and  the  premises  .so  injuri- 
ously affected,  this  was  held  a  good  return.  Regina  v.  West  Midland  Railway 
Co., 11  W.  R.  8.J7. 

8  Lord  Campuki.l,  in  Regina  v.  London  &  Northwestern  R.iilway  Co.,  16 
Q.  B.  804;  s.  c.  G  Eng.  L.  &  Eq.  220;  Regina  v.  Ambergate,  Nottingham.  & 
Boston  Railway  Co.,  1  Ellis  &  B.  372;  s.  c.  18  Eng.  L.  &  Eq.  222.  In  Regina 
V.  Eastern  Counties  Railway  Co.,  10  A.  &  E.  531,  it  was  considered  no  objec- 
tion to  granting  the  writ  that  the  company  hatl  not  the  retjuisite  funds,  and 
could  not  raise  thom,  without  a  new  act. 

*  Regina  v.  Ambergate,  Nottingham,  &  Boston  Railway  Co.,  1  Ellis  &  B. 
372;  s.  c.  18  Eng.  L.  &  Eq.  222. 

6  Regina  i;.  York  &  North  IVIidland  Kailw.ay  Co.,  IG  Eng.  L.  &  Eq.  209.  not 
reversed  on  these  points;  Regina  v.  Lanca.shire  &  Yorkshire  Railway  Co., 
7  Railw.  Cas.  2G6;  s.  c.  IG  Eng.  L.  &  Eq.  327. 

[•648] 


702  MANDAMUS.  [PART   VII. 

the  writ  be  repugnant,  the  court  may,  upon  that  ground,  quash 
the  whole.^ 

5.  The  counsel  for  the  crown  are  allowed  to  begin,  although'the 
return  may  be  in  the  nature  of  a  demurrer  to  the  writ."  The 
validity  of  the  writ  may  be  impeached  on  the  return.^ 

6.  In  a  case  where  the  approaches  to  a  bridge  across  a  railway 
were  not  of  the  width  required  by  the  special  act,  a  return  to  the 
writ  of  mandamus,  that  they  were  as  convenient  to  the  public  as 
the  original  road,  or  as  they  could  be  made,  in  execution  of  the 
powers  of  the  act,  and  that  to  widen  them  to  the  dimensions  de- 
fined in  the  act  would  require  more  land,  and  that  their  powers 
for  taking  land  compulsorily  had  expired  before  they  were  called 
upon  to  widen  these  approaches,  is  bad.^ 

7.  The  peremptory  writ  will  not  be  issued  until  all  the  matters 
contained  in  the  alternative  writ  are  finally  determined  in  favor 
of  the  application,  or  enough  so  to  justify  the  writ.^^ 

*  8.  The  court  will  not  quash  a  return  summarily,  or  order  it 
taken  off  the  file,  unless  it  is  frivolous,  so  as  to  be  an  obvious  in- 
sult and  contempt  of  court.^^ 

9.  No  excuse  for  non-compliance  with  a  peremptory  writ  of 
mandamus  is  admissible.^^     It  is  no  ground  of  objection  to  a  man- 

6  Statute  9  Anne,  c.  20;  Regina  v.  Cambridge,  2  T.  R.  456;  4  Bur.  2008; 
Kex  V.  York,  5  T.  R.  66. 

7  Regina  v.  St.  Pancras,  6  A.  &  E.  314;  State  v.  Bank  Directors,  28  Yt.  594. 

8  Clarke  v.  Leicestershire  &  Nortliamptonshire  Union  Canal,  6  Q.  B.  898; 
s.  c.  3  Railw.  Cas.  730. 

9  Regina  v.  Birmingham  &  Gloucester  Railway  Co.,  2  Q.  B.  47;  3  id.  223; 
2  Railw.  Cas.  694;  Rex  v.  Ouse  Bank  Commissioners,  3  A.  &  E.  544. 

10  Regina  v.  Baldwin,  8  A.  &  E.  947.  This  was  where  the  alternative  writ 
required  two  sums  of  money  to  be  paid,  and  it  had  been  found  that  one  of  the 
sums  was  due,  and  the  inquiry  was  not  finished  in  regard  to  the  other.  The 
court  refused  to  grant  a  peremptory  writ  for  the  payment  of  the  one  sum  until 
the  controversy  about  the  other  was  ended. 

"  Regina  v.  Payn,  3  Nev.  &  P.  165;  King  v.  Round,  5  Nev.  &  M.  427. 
But  the  return  to  a  writ  of  mandamus  must  be  very  minute  in  showing  why 
the  party  did  not  do  what  he  was  commanded  to  do.  Regina  v.  Southampton, 
1  Ellis,  B.  &  S.  5;  s.  c.  7  Jur.  n.  s.  990;  30  Law  J.  Q.  B.  244. 

12  Regina  v.  Poole,  1  Q.  B.  616.  But  after  judgment  for  the  crown,  on  a 
return  to  a  writ  of  mandamus,  the  defendants  having  voluntarily,  and  with 
the  prosecutor's  assent,  done  the  act  commanded,  the  court  will  quash  a  per- 
emptory writ  of  mandamus  as  unnecessary,  and  an  abuse  of  the  process  of  the 
'court.  Regina  v.  Saddlers'  Company, 3  Ellis  &  E.  42;  s.  c.  10  H.  L.  Cas.  404; 
33  Law  J.  Q.  B.  68. 
[*G49] 


§  157.]       ALTERNATIVE    WRIT   REQUIRING   TOO    MUCU,   BAD.  703 

damns,  that  a  requisition  is  made  on  parties  in  the  alternative,  to 
do  one  of  three  things,  if  the  duty  enjoined  by  the  act  of  parlia- 
ment forms  one  of  them,  and  there  has  been  a  general  refusal  to 
comply  with  the  requisition.^^  And  tlic  demand  for  tlie  rate  in 
this  case  was  held  sufiicient,  notwithstanding  the  church-wardens 
required  the  vestry  to  lay  the  rate,  or  do  another  act,  which  last 
was  illegal.^^ 


SECTION   VII. 

Alternative  Writ  requiring  too  mnch,  had^  for  that  tvhich  it  nihjht 

have  maintained. 

§  157.  It  seems  to  be  well  settled  in  the  English  practice,  that 
if  the  writ  issue,  in  the  first  instance,  for  some  things  which  de- 
fendant is  not  bound  to  do,  it  cannot  be  supported,  even  as  to 
those  things  which  he  is  compellable  to  perform.^  But  the  writ 
may  be  awarded  to  complete  such  portions  of  their  road  as  the 
company  are  still  compellable  to  build,  although  from  lapse  of 
time  it  has  become  impossible  to  build  the  entire  road.^ 

But  if  the  alternative  writ  commands  more  than  is  necessary  to 
*  be  done  to  comply  with  the  statute,  it  will  be  quashed,  notwith- 
standing the  party  might  have  been  entitled  to  this  remedy  to  a 
certain  extent.^ 

18  Regina  v.  St.  Margarets,  8  A.  &  E.  889. 

1  Regina  i;.  Caledonian  Railway  Co.,  IG  Q.  B.  19;  8.  c.  3  Eng.  L.  &  Eq. 
285;  Regina  v.  East  &  West  India  Docks  &  Birmingham  Junction  Railway  Co., 
2  Ellis  &  B.  4GG;  8.  c.  22  Eng.  L.  &  Eq.  113. 

2  Regina  v.  York  &  North  M.  Railway  Co.,  16  Eng.  L.  &  Eq.  299.  This 
case  was  reversed  in  Exchequer  Chamber  on  other  grounds. 

8  York  &  North  IMidland  Railway  Co.  v.  Milner,  3  Railw.  Gas.  774,  revers- 
ing, in  the  Exchequer  Chamber,  Queen  v.  York  &  North  Midland  Railway 
Co.,  3  Railw.  Cas.  7G4. 

[*G50] 


704 


MANDAMUS. 


[part   VII. 


SECTION    VIII. 


Enforcing  Payment  of  Money  awarded  ayainst  Railways. 


Enforcing  payment  of  money  by  cor- 
porations by  mandamus. 

Where  debt  will  lie,  mandamus  will 
not. 

Mandamus  proper  to  compel  payment 
of  compensation  under  statute. 


4.  Mandamus  not  allowed  in  matters  of 

equity  jurisdiction. 

5.  Contracts  of  company  not  under  seal 

enforced  by  mandamus. 
G.  Where   a   statute   imposes   a  specific 
duty,  an  action  will  lie. 


§  158.  1.  It  seems  to  have  been  the  more  general  practice  to 
enforce  the  payment  of  money  awarded  against  a  corporation,  in 
pursuance  of  a  statute  duty,  by  mandamus,  where  no  other  spe- 
cific remedy  is  provided.^ 

*  2.  But  it  has  been  held  that  an  action  of  debt  will  lie  upon 
the  inquest   and   assessment  of   compensation   for   land.^     And 

1  King  V.  Nottingham  Old  Waterworks,  6  A.  &  E.  355;  Rex  v.  Swansea 
Harbor,  8  A.  &  E.  439.  In  this  case  one  party  moved  for  a  certiorari  with  a 
view  to  quash  the  proceedings,  and  the  other  for  a  mandamus  to  carry  them 
into  effect.  The  rule  for  the  former  was  discharged,  and  for  the  latter  made 
absolute.  Regina  v.  Deptford  Improvement  Co.,  8  A.  &  E.  910.  Where  a  city 
council  is  authorized  and  required  by  law  to  levy  and  collect  a  tax  on  the  real 
and  personal  property  of  the  city,  sufficient  to  pay  the  interest  on  bonds  issued 
by  the  city  in  payment  of  a  subscription  to  the  stock  of  a  railway  company, 
and  the  council  refuses  to  do  so,  and  there  is  no  specific  legal  remedy  pro- 
vided for  such  refusal,  mandamus  may  be  issued  to  compel  them  to  perform 
that  duty,  at  the  instance  of  holders  to  whom  the  bonds  have  passed  from  the 
company.  An  express  or  explicit  refusal  in  terms  is  not  necessaiy  to  put  the 
respondents  in  fault ;  it  will  be  sufficient  that  their  conduct  makes  it  clear 
that  they  do  not  intend  to  do  the  act  required.  The  writ,  in  such  case,  may 
be  applied  for  by  any  of  the  bondholders;  and  it  is  not  necessary  that  all  the 
bondholders  should  be  parties  to  it.  Nor  in  Kentucky  is  it  necessary  to  make 
the  railway  corporation,  to  which  the  bonds  were  originally  executed,  or  the 
tax-payers  of  the  city,  or  the  commonwealth,  parties  to  the  bills.  And  it  is  no 
objection  to  the  issuing  of.  the  writ  that  an  action  has  been  brought  against 
the  city,  on  some  of  the  coupons,  such  action  having  been  dismissed  before 
judgment,  on  the  petition  for  mandamus.  Maddox  v.  Graham,  2  Met.  Ky. 
56.  It  is  laid  down  in  the  above  case,  that  a  proceeding  for  a  mandamus 
against  the  city  council  is  virtually  a  proceeding  against  the  corporation,  and 
the  judgment  is  obligatory  on  the  members  of  the  common  council  who  may 
be  in  office  at  the  time  of  its  rendition.  And  a  change  in  the  membership  of 
this  council  does  not  so  change  the  parties  as  to  abate  the  proceeding.      lb. 

2  Corrigal  v.  London  &  Blackwall  Railway  Co.,  5  Man.  &  G.  219. 

[*651] 


§  158.]       ENFORCING    PAYMENT    AWARDED    AGAINST  RAILWAYS.        705 

where,  in  granting  to  a  railway  the  right  to  erect  a  bridge  across 
the  river  Ousc,  it  was  provided  in  the  act  of  parliament,  that,  if 
the  erection  of  such  bridge  should  lessen  the  tolls  of  another 
bridge  company  upon  the  same  river,  after  a  trial  of  three  years, 
as  comjiared  with  the  three  years  next  preceding  the  erection  of 
the  railway  bridge,  the  railway  company  should  pay  to  the  bridge 
company  a  sum  equal  to  ten  years'  purcliase  of  such  annual  de- 
crease of  tolls  ;  it  was  held  that  debt  will  lie  for  such  jjurchase, 
and  that  mandamus  is  no  more  effectual  remedy  and  ought  not  to 
be  granted.'^  If  the  party  have  no  right  to  execution,  upon  an 
award,  mandamus  will  be  awarded,  otherwise  not.^ 

3.  So  the  court  will  not  enforce  an  ordinary  matter  of  contract 
or  right,  upon  which  action  lies  in  the  common-law  courts,  as  to 
compel  common  carriers  to  perform  their  public  duties,  or  special 
contracts,^  the  statute  not  requiring  them  to  carry  all  goods 
offered.  But  where  compensation  is  claimed  for  damages  done 
under  a  statute,  the  proper  remedy  is  by  mandamus,  although  the 
party  may  claim  that  the  company  went  beyond  their  powers, 
and  thus  committed  a  wrong  for  which  the  proper  remedy  is  an 
action.^ 

4.  Nor  will  mandamus  lie  where  the  proper  remedy  is  in 
equity,''  *  and  the  right  is  one  not  enforceable  at  law,  but  only  in 

»  Regina  v.  Hull  &  Selby  Railway  Co.,  6  Q.  B.  70;  Williams  v.  Jones,  13 
M.  &  W.  G28.  Courts  of  equity  will  not  interfere  where  there  is  a  remedy 
before  sheriffs'  jury.  East  &  West  India  Docks  &  Birmingham  Junction 
Railway  Co.  v.  Gattke,  3  IMacn.  &  G.  155;  s.  c.  3  Eng.  L.  &  Eq.  59. 

*  Rex  V.  St.  Catherine's  Dock  Co.,  4  B.  &  Ad.  3G0;  Corpe  i^.  Glyn,  3  B.  & 
Ad.  801  ;  Regina  v.  Victoria  Park  Co.,  1  Q.  B.  288.  And  in  this  ca.se  Lord 
Denman  says  the  court  should  not  go  beyond  its  extraordinary  interjKisition 
by  mandamus,  to  require  a  corporation  to  make  a  call  on  the  shareholders  to 
pay  debts,  where  the  legislature  had  intrusted  them  with  that  power,  and 
they  had  no  standing  capital. 

*  Ex  parte  Robbins,  7  Dowl.  P.  C.  500. 

6  Rpgina  i'.  North  Midland.  Railway  Co.,  2  Railw.  C:v.s.  1;  11  A.  &  E.  955; 
Thicknesse  v.  Lancaster  Canal  Co.,  4  M.  &  W.  472;  Fenton  v.  Trent  &  Mer- 
sey Navigation  Co.,  9  M.  &  W.  203;  Rex  v.  Ilungerford  Market  Co.,  3  Nev. 
&  M.  022. 

T  Rex  v.  Stafford,  3  T.  R.  040.  See  Edwards  v.  Lowndes,  1  Ellis  &  B.  92; 
20  Law  J.  Q.  B.  404;  10  Eng.  L.  &  Eq.  204.  The  relation  of  trustee  and 
cestui  que  trust  gives  no  right  of  action  at  law  for  money  due.  Pardoe  c.  Price, 
10  M.  &  W.  451.  The  proper  remedy  is  in  equity,  and  mandamus  will  not 
lie.  Regina  v.  Balby  &  Worksop  Turnpike,  17  Jur.  734;  s.  c.  10  Eng.  L.  & 
Eq.  270. 

VOL.  I.  — 45  [*G52] 


706  MANDAMUS.  [PART   VII. 

equity,  as  in  matters  of  trust  and  confidence.  But  in  a  case 
where  the  act  of  incorporation  allowed  the  company  to  sue  and  to 
be  sued  in  the  name  of  their  clerk,  it  was  held  that  execution 
could  not  issue  against  the  clerk  personally ;  and  in  giving  judg- 
ment, TiNDAL,  C  J.,  said  :  "  There  can  be  no  doubt  but  that  the 
funds  of  the  trustees  may  be  made  answerable  for  the  amount 
ascertained  in  the  action,  in  case  of  a  refusal  to  apply  them,  either 
by  a  mandamus  or  a  bill  in  equity."  ^ 

5.  And  where,  after  a  rule  nisi,  for  a  mandamus  to  compel  the 
company  to  summon  a  jury  to  assess  compensation  to  land- 
owners, a  contract  was  entered  into  between  the  land-owners  and 
the  agent  of  the  company,  wherein  they  agreed  upon  the  payment 
of  a  stated  sum,  and  also  a  weekly  compensation  ;  upon  the  pay- 
ment of  the  stated  sum,  and  the  execution  of  the  contract,  the 
proceedings  were  discontinued.  The  company  paid  the  weekly 
sum  for  a  time,  and  then  discontinued  the  payment.  The  appli- 
cation for  mandamus  being  renewed,  the  court  held,  that,  as  the 
contract  was  not  under  their  seal,  no  action  will  lie  upon  it 
against  the  company,^  and  it  should  therefore  be  enforced  by 
mandamus.^*^ 

6.  It  seems  to  be  the  general  rule  of  the  English  law,  that 
where  a  statute  imposes  a  specific  obligation  or  duty  upon  a 
corporation,  an  action  will  lie  to  enforce  it,  founded  upon  the 
statute,  either  debt  or  case,  according  to  the  nature  of  the 
claim. ^1 

'  Wormwell  v.  Hailstone,  G  Bing.  6G8. 

9  Regina  v.  Stamford,  6  Q.  B.  433. 

10  Regina  v.  Bristol  &  Exeter  Railway  Co.,  4  Q.  B.  162;  s.  c.  3  Railw. 
Cas.  777.  This  seems  like  too  great  a  refinement.  If  the  contract  was 
really  obligatory  on  the  company,  it  might  as  well  be  the  foundation  of  an 
action,  as  to  be  enforced  by  mandamus.  In  Tenney  i".  East  Warren  Lumber 
Co.,  43  N.  II.  313,  it  was  held,  that  evidence  that  a  deed  purporting  to  be  the 
deed  of  a  corporation  was  executed  by  agents  duly  authorized  by  it,  is  prima 
facie  evidence  that  any  seal  affixed  to  it  has  been  adopted  by  the  corporation 
for  that  occasion.  And  the  same  point  is  maintained  in  Ransom  v.  Stoning- 
ton  Savings  Bank,  2  Beasley,  212. 

"  Tilson  V.  Warwick  Gas-Light  Co,.  4  B.  &  C.  962;  Carden  v.  General 
Cemetery  Co.,  5  Bing.  N.  C.  253. 
[*(352] 


§  159.]      WRIT   DENIED   IN   MATTERS   OF   PIIIVATE   CONCERN. 


'01 


♦SECTION   IX. 


Writ  sometimes  denied  in  Matters  of  Private   Concern. 


1.  Denied  to  compel  company  to  divide 

profits. 

2.  Allowed  to  compel  production  and  in- 

spection of  corporation  books. 

3.  Allowed  to  compel  tiie  performance  of 

statute  duty,  but  not  to  UTido  what 
is  done. 


4.  Allowed  to  compel  tlie  production  of 

the  register  of  shares,  or  the  regis- 
try of  the  name  of  the  owner  of 
shares,  and  in  other  cases. 

5.  Common  remedy  for  restoring  persons 

to  corporate  offices  of  wiiich  they 
are  unjustly  deprived. 


§  159.  1.  Where  the  charter  and  subsequent  acts  relating  to 
the  Bank  of  England  required  the  corporation  to  divide  their 
profits  semi-annually,  a  mandamus  to  compel  the  production  of 
the  hooks  of  the  company,  so  as  to  show  an  account  of  their  net 
income  and  profits,  since  the  last  dividend  was  declared,  more 
than  six  montlis  having  elapsed,  was  denied.^  Abbott,  C.  J., 
said  it  was  in  effect  "  an  ap])lication,  on  l)ohalf  of  one  of  several 
partners,  to  compel  his  copartners  to  produce  their  accounts  of 
profit  and  loss,  and  to  divide  their  profits,  if  any  there  be."  It 
was  also  said,  that  this  might  very  properly  be  done  in  a  Court 
of  Chancery,  but  a  court  of  law  is  a  very  unfit  tribunal  for  such  a 
subject.  "  A  mere  trading  corporation  differs  materially  from 
those  which  are  intrusted  with  the  government  of  cities  and 
towns,  and  therefore  have  important  public  duties  to  perform." 
Bayley,  J.,  said  :  "  The  court  never  grant  this  writ,  except  for 
public  purposes,  and  to  compel  the  performance  of  public  duties." 
J>EST,  J.,  said  :  "  If  we  were  to  grant  this  rule  we  should  make 
ourselves  auditors  to  all  the  trading  corporations  in  England." 

2.  But  in  a  later  case-  it  was  held,  that  mandamus  may  be 
granted  to  compel  the  production  and  inspection  of  corporation 
books  and  records  at  the  suit  of  a  corporator,  where  a  distinrt 
controversy  has  already  arisen,  and  the  relator  is  interested  in  tlio 
question,  and  the  former  cases  upon  the  subject  are  elaborately 
reviewed,  and  held  to  confirm  this  view.^  (a) 

1  Rex  V.  Bank  of  England.  2  B.  &  Aid.  020. 

2  Rex  r.  Merchant  Tailors'  Co.,  2  B.  &  Ad.  115. 

^  Rex  I'.  Hostmen,  2  Stra.  1223.     So  to  inspect  the  court  roll  of  a  manor. 


(«)  See  infra,  pi.  4. 


[*653] 


708  MANDAMUS.  [PART   VII. 

*  3.  The  court  has  refused  to  grant  a  mandamus  to  a  private 
trading  corporation,  to  permit  a  transfer  of  stock  to  be  made  in 
their  books.*  In  one  case  the  writ  was  applied  for,  to  compel 
a  railway  company  to  take  the  company  seal  off  the  register  of 
shareholders.^  Lord  Campbell,  C.  J.,  said  :  "  If  I  had  the  small- 
est doubt,  I  would  follow  the  example  of  the  high  tribunal  (Q.  B. 
in  Ireland),  which  is  said  to  have  complied  with  a  sipailar  appli- 
cation. But  having  no  doubt,  I  am  bound  to  act  on  my  own 
view.  The  writ  of  mandamus  is  most  beneficial,  but  we  must 
keep  its  operation  within  legal  bounds,  and  not  grant  it  at  the 
fancy  of  all  mankind.  We  grant  it  when  that  has  not  been  done 
which  a  statute  orders  to  be  done,  but  not  for  the  purpose  of 
undoing  what  has  been  done."  ^  "  It  is  said  the  court  "will  com- 
pel the  corporation  to  affix  its  seal,  when  it  refuses  to  do  so 
without  legal  excuse,  but  will  not  try  the  legality  of  an  act 
professedly  done  in  pursuance  of  a  statute."  The  difference 
seems  to  be  one  of  form  rather  than  substance,  and  to  rest  mainly 
upon  the  consideration,  that,  after  the  act  is  done,  its  legality  had 
better  be  tested  in  the  ordinary  mode,  by  an  action  at  law  or  in 
equity. 

4.  But  the  writ  has  been  granted  to  compel  the  production  of 
a  register  of  shareholders,  to  enable  a  creditor  to  proceed  against 


at  the  instance  of  a  tenant  who  has  an  interest  in  a  pending  question,  and  has 
been  refused  permission  to  inspect  the  court  rolls  by  the  lord  of  the  manor. 
Rex  V.  Shelley,  3  T.  R.  141.  But  not  otherwise.  Rex  v.  Allgood,  7  T.  R. 
746.  It  is  not  necessary  that  a  suit  be  pending,  if  a  distinct  question  have 
arisen.  Rex  v.  Tower,  4  M.  &  S.  162.  And  in  action  against  an  incorporated 
company,  which  has  ceased  to  carry  on  business,  a  director  of  the  company 
may  be  ordered  by  the  court  or  a  judge  to  give  the  plaintiff  inspection  of  docu- 
ments not  denied  to  be  in  his  possession,  or  under  his  control.  Lacharme  v. 
Quartz  Rock  Mariposa  Gold  INIining  Co.,  31  Law  J.  Exch.  385;  s.  c.  1  H.  & 
C.  134.  And  the  corporators  may  compel  the  inspection  of  the  stock  ledger, 
if  that  contain  important  evidence,  although  the  corporation  do  not  keep  the 
books  required  by  law.  People  v.  Pacific  Mail  Steamship  Co.,  50  Barb. 
280. 

*  Rex  V.  London  Assurance  Co.,  5  B.  &  Aid.  899. 

5  Ex  parte  Nash,  15  Q.  B.  92. 

^  The  office  of  the  writ  of  mandamus  is  to  stimulate  and  not  to  re.strain  the 
exercise  of  official  functions;  and  after  the  officers  have  performed  the  duties 
imposed  on  them,  they  are  no  longer  subject  to  it.     Bedford  Borough  School 
Directors  v.  Anderson,  45  Peun.  St.  388. 
[*654] 


§  150.]       WRIT    DKNIEI)    IN    MATTERS    OF    PRIVATE    CONCERN.  709 

thcra."  {b')  So,  too,  to  compel  the  registry  of  the  name  of  the 
owner  of  shares,  properly  transferred,  or  of  the  name  of  the  per- 
sonal *  representative,  in  case  of  the  decease  of  the  owncr.'^  But 
in  some  cases  of  peculiar  necessity  for  specific  aid  by  way  of  man- 
damus, as  the  delivery  of  a  key  to  the  party  entitled  to  hold  it, 
by  the  foundation  of  a  private  charity,^  the  writ  has  been  awarded. 
5.  And  there  can  be  no  doubt  the  Court  of  Queen's  Bench  has 
almost  immcmorially  been  accustomed  to  try  the  validity  of  mu- 
nicipal and  other  public  corporate  elections  by  quo  tvarranto^ 
which,  in  case  of  illegality  found,  will  displace  the  incumbents, 
but  not  establish  those  rightfully  entitled  to  the  function,'*^  (c) 

'  Regina  v.  Worcestershire  &  Stafford  Railway  Co.,  Q.  B.  "W.  R.  1853-54, 
482. 

8  Supra,  §§  42,  44;  Regina  r.  Londonderry  &  Coleraine  Railway  Co.,  13 
Q.  B.  998.  No  question  is  made  here  but  the  court  will  compel  the  company, 
by  mandamus,  to  enter  a  transfer  on  its  books  in  a  proper  case,  but  the  appli- 
cation was  denied  on  other  grounds.  See  Regina  v.  Midland  Counties  Railway 
Co.,  15  Ir.  Com.  Law,  514,  525.  And  see  Helm  v.  Swiggett,  12  Ind.  194. 
But  not  where  inspection  of  the  certificate  of  shares  was  refused  to  the  direc- 
tors.    In  re  East  Wheal  ]\Iartha  Mining  Co.,  33  Beav.  119. 

9  Regina  v.  Abrahams,  4  Q.  B.  157. 

^0  Rox  V.  Williams,  1  Bur.  4U2;  Rex  v.  Hertford,  1  Ld.  Ray.  42G;  1  Salk. 
374;  Rex  v.  Breton,  4  Bur.  2200;  Rex  v.  Cambridge,  4  Bur.  2008;  Rex  v. 
Tregony,  8  Mod.  Ill,  127;  Rex  v.  Turkey  Co.  2  Bur.  999;  Anonymous,  2  Stra. 
690.  In  some  pjnglish  cases  the  King's  Bench  seems  to  have  altogether  dis- 
regarded the  distinction  between  public  and  private  corporations,  in  exercising 
control  over  their  functionaries.  Ilex  v.  Bishop  of  Ely,  2  T.  R.  290.  And 
in  Rex  v.  St.  Catharine's  Hall,  4  T.  R.  233,  the  refusal  to  grant  the  writ 
seems  to  be  placed  altogether  on  other  grounds.  But  it  seems  a  mandamus 
will  not  be  awarded  to  compel  a  voluntary  society  to  recognize  the  rights  of 
the  minority.  King  v.  Gray's  Inn,  Doug.  353;  Rex  v.  Lincoln's  Inn,  4  B.  & 
C.  855.  Where  there  is  already  one  in  the  office  ile  fdclo,  mandamus  will  not 
be  awarded,  quo  warranto  being  the  proper  remedy  to  try  the  title  of  the  officer 
in  possession.  Rex  v.  Colchester,  2  T.  R.  259,  260.  But  in  Rex  v.  Thatcher, 
1  D.  &  R.  420,  it  was  awarded  to  the  commissioners  of  land  tax  to  admit  as 
clerk  the  person  having  the  majority  of  legal  votes.  People  r.  New  York, 
3  Johns.  Cas.  79;  St.  Louis  County  Court  r.  Sparks,  10  Mo.  117;  Bonner 
V.  State,  7  Ga.  473;  Clayton  v.  Carey,  4  Md.  20. 

(h)  In  general,  mandamus  will  is-  poses   purely  speculative.     People   v. 

sue  to  compel  a  corporation  to  exhibit  Northern  Pacific  Railway  Co.,  18  Fed. 

its  stock  transfer  books  to  stockholders.  Rep.  471. 
In  re  Sage,  70  N.  Y.  220.     But  not  (c)  See  supra,  §  153. 

where  inspection  is  wanted  for  pur- 

[*655] 


710  MANDAMUS.  [PART   VII. 

mandamus  being  requisite  for  that  purpose.  But  whatever  may- 
be the  English  rule  in  regard  to  merely  private  corporations,  it 
is  certainly  settled  in  this  country  that  the  courts  will  try  the 
validity  of  an  election  and  the  question  of  usurpations  and  the 
legality  of  amotions  in  private  corporations  in  this  mode.^^  But 
there  is  one  *  case  where  the  court  refused  to  try  the  title  to  an 
annual  office  by  writ  of  mandamus,  for  the  reason  that  it  would 
prove  unavailing. ^2  But  it  has  been  awarded  in  England  to 
restore  a  clerk  to  a  butchers'  company,  a  clerk  to  a  company  of 
masons,  and  sundry  similar  officers,^^  and  in  this  country,  to 
restore  the  trustee  of  a  private  academic  corporation,^*  a  mem- 
ber of  a  religious  corporation,  and  many  similar  officers.^^ 

"  Commonwealth  v.  Arrison,  15  S.  &  R.  131;  People  v.  Thompson,  21  \yend, 
235;  s.  c.  23  Wend.  537;  People  v.  Head,  25  111.  325;  State  v.  Common 
Council,  9  Wis.  254;  State  v.  Boston,  Concord,  &  Montreal  Railroad  Co.,  25 
Vt.  433;  In  re  White  River  Bank,  23  Vt.  478;  Commonwealth  v.  Union  Fire 
&  Marine  Insurance  Co.,  5  Mass.  231;  State  v.  Ashley,  1  Pike,  570;  St.  Luke's 
Church  V.  Slack,  7  Cush.  226.  But  in  Gorman  v.  Police  Board,  35  Barb.  527, 
it  is  intimated  that  mandamus  will  not  issue  to  restore  an  officer  removed  in 
an  illegal  manner,  but  for  a  sufficient  cause.  ISIartin  v.  Police  Board,  35  Barb. 
550.  See  to  the  same  point  Barrows  v.  Massachusetts  Medical  Society,  12 
Cush.  402.  And  a  fortiori  mandamus  lies  where  the  office  concerns  the  public 
or  the  administration  of  justice.  Lindsey  v.  Luckett,  20  Tex.  516;  Felts  v. 
Memphis,  2  Head,  650. 

1^  Howard  v.  Gage,  6  Mass.  462.  But  this  case  was  decided  on  the  ground 
that  the  statute  of  Anne  not  being  in  force  in  that  state,  the  truth  of  the  re- 
turn to  the  alternative  writ  could  not  be  tried  till  the  term  should  expire.  But 
the  decision  is  scarcely  maintainable  even  on  that  ground.  But  it  was  held  a 
good  defence  to  a  writ  of  mandamus  to  compel  a  township  treasurer  to  pay 
an  order  for  a  teacher's  salary,  that  his  terra  of  office  had  expired,  and  all  the 
funds  in  his  hands  had  in  good  faith  been  paid  over  to  his  successor.  State  v. 
Lynch,  8  Ohio  St.  347. 

13  Angell  &  Ames  Corp.  §  704.  And  where,  by  the  custom  of  a  parish,  one 
churchwarden  was  appointed  annually  by  the  parishioners,  and  one  annually 
by  the  rector,  and  the  latter  appointed  a  person  who  was  not  an  inhabitant  of 
or  an  occupier  of  property  in  the  parish,  it  was  held  that  a  mandamus  to  the 
rector  to  appoint  a  churchwarden  was  the  proper  process  by  which  to  question 
the  validity  of  the  appointment.  In  re  Bailow,  30  Law  .1.  Q.  B.  271 ;  s.  c.  5 
Law  T.  N.  s.  289.  And  see  Regina  v.  Heart  of  Oak  Benefit  Society,  13  W.  R. 
724. 

1*  Fuller  V.  Academic  School,  6  Conn.  532.  The  opinion  of  Daggett,  J., 
here  discusses  the  power  of  amotion  of  trustees  and  officers  by  eleemo-synary 
corporations  .somewhat  at  length,  and  comments  very  judiciously  on  the  cases. 

15  Green  v.  African  Methodist  Episcopal  Society,  1  S.  &  R.  254;  Common- 
[*656] 


§  IGO.J       KEMEDV   LOST.  —  TUOCEEDING    MUST   BE   DONA    FIDE.  711 

♦SECTION  X. 
Remedy  lost  by  Acquiescence.  —  Proceediny  must  he  Bona  Fide. 


1.  Remedy  must  be  sought   at  earliest 

convenient  time. 

2.  Courts  will  not  hear  such  applications 


made  merely  to  obtain  opinion  of 
court. 
3.  Application  any  time  within  statute  of 
limitations?  , 


§  160.  1.  The  right  to  interfere  in  the  proceedings  of  a  corpora- 
tion by  mandamus,  is  one  of  so  summary  a  character,  that  it  should 
be  asserted  at  the  earliest  convenient  time,  or  it  will  not  be  sus- 
tained.^    And  especially  where,  in  the  mean  time,  the  facilities 

wealth  V.  St.  Patrick  Benevolent  Society,  2  Binn.  441,  448;  Commonwealth  i-. 
Philanthropic  Society,  5  Binn.  48G;  Commonwealth  v.  Pennsylvania  Benevo- 
lent Institution,  2  S.  &  R.  141 ;  Franklin  Benevolent  Association  v.  Common- 
wealth, 10  Penn.  St.  ;357;  Commonwealth  v.  German  Society,  15  Peun.  St. 
251.  But  if  the  society  have  the  absolute  power  of  expulsion,  it  would  seem 
that  its  judgment  in  the  matter  is  not  revisable.  lb.  It  was  said,  however, 
that  a  private  person  who  makes  a  highway  on  his  own  land  and  dedicates  it  to 
public  use,  ha.s  no  such  interest  in  the  highway  as  to  enable  liim  to  sue  for 
penalties  given  against  a  railway  which  had  cut  through  the  liighway  and  not 
restored  it,  and  a  mandamus  to  enforce  the  recovery  of  such  penalty  was  denied 
on  the  ground  that  the  prosecutor  had  no  public  duty  in  regard  to  the  high- 
way.    Regina  r.  Wilson,  11  Eng.  L.  &  Eq.  403;  s.  c.  1  Ellis  &  B.  597. 

^  Rex  V.  Stainforth  &  Keadby  Canal  Co.,  1  M.  &  S.  32;  Rex  r.  Cockermouth 
Inclosure  Commissioners,  1  B.  &  Ad.  378;  Regina  v.  Leeds  &  Liverpool  Canal 
Co.,  11  A.  &  E.  31G;  Lee  v.  Milner,  1  Railw.  Cas.  G3J;  Regina  v.  London  & 
Northwestern  Railway  Co.,  IG  Q.  B.  8G4;  s.  c  G  Ruilw.  Cas.  G34,  and  Regina 
V.  Lancashire  &  Yorkshire  Railway  Co.,  IG  Q.  B.  90G;  s.  c.  IG  Q.  B.  G54.  So, 
in  Connecticut,  where  by  statute  a  school  district  can  change  its  school-house 
only  by  a  two-thirds  vote,  and  a  district  which  had  an  established  school- 
house  voted  by  a  less  majority  to  have  the  school  kept  for  the  season  in  a  room 
furnished  for  the  purpose  within  half  a  mile  from  the  school-house,  more  con- 
venient for  the  children  generally,  and  the  district  committee  kept  the  school 
there,  a  mandamus  being  applied  for  by  some  members  of  the  district,  tax- 
payers therein,  some  of  whom  had  children  whom  they  wished  to  send  to  the 
school,  to  compel  the  district  committee  to  have  the  school  kept  in  the  school- 
house,  it  appearing  that  at  the  time  of  the  application  the  term  of  the  school 
had  half  expired,  and  had  nearly  expired  at  the  time  of  the  liearing,  this  was 
held  not  to  be  such  a  case  as  called  imperatively  for  the  interposition  of  the 
court  by  mandamus,  it  not  appearing  to  be  a  permanent  attempt  to  change 
the  place  of  the  school.  Cult  v.  Roberts,  28  Couu.  330.  See  State  v.  Lynch, 
8  Ohio  St.  347. 

[♦657] 


712 


MANDAMUS. 


[part   VII. 


for  accomplishing  a  public  work,  or  the  public  demand  for  it, 
have  materially  changed,  the  writ  will  not  be  awarded.^  But  it 
is  often  proper  and  necessary  to  wait  till  public  works  are  com- 
pleted, before  moving  for  the  writ.^ 

2.  The  English  courts  decline  to  hear  applications  for  manda- 
mus, *  which  are  not  bona  fide,  but  merely  to  obtain  the  opinion 
of  the  court,*  even  where  the  prosecutor  may  have  bona  fide  pur- 
chased shares  in  the  corporation,  but  for  the  mere  purpose  of  try- 
ing a  question  in  which  the  public  have  an  interest.* 

3.  In  New  York  it  was  held,  that  as  there  was  no  special  limi- 
tation upon  this  remedy,  it  might  be  brought  within  the  time 
fixed  for  the  limitation  of  other  similar  or  analogous  remedies.^ 
But  this  rule  seems  liable  to  objection  in  many  cases.  The  Eng- 
lish rule,  that  the  party  should  suffer  no  unreasonable  delay,  in 
the  opinion  and  discretion  of  the  court,  seems  more  just  and 
equitable,  and  is  countenanced  by  other  American  cases.^  The 
decisions  of  the  English  courts  are  very  strict  upon  this  point.'^ 


SECTION    XI. 


Mandamus  allowed  where  Indictment  lies. 


1.  Mandamus  sometimes  lies  where  act 

in  question  is  indictable. 

2.  Lies  to  compel  company  not  to  take 

up  their  rails. 


3.  Denied  where  there  is  other  adec[uate 
remedy. 


§  161.  1.  It  seems  to  have  been  considered  that  the  fact  that  a 
railway  or  other  corporation  had  exposed  themselves  to  indictment 
by  the  very  act  or  omission  proposed  to  be  remedied  by  manda- 


2  Regina  v.  Rochdale  &  Halifax  Turnpike  Road,  12  Q.  B.  448. 

8  Ex  parte  Tarkes,  9  Dowl.  P.  C.  614;  Infra,  §  220;  Regina  v.  Bingham, 
4  Q.  B.  877;  3  Railw.  Cas.  390. 

■*  Regina  v.  Liverpool,  Manchester,  &  Newcastle-upon-Tyne  Railway  Co., 
21  Law  J.  Q.  B.  281;  16  Jur.  149;  11  Eng.  L.  &  Eq.  408;' Regina  v.  Black- 
wall  Railway  Co.,  9  Dowl.  P.  C.  5.18. 

5  People  V.  "West  Chester  Supervisors,  12  Barb.  446. 

«  Savannah  v.  State,  4  Ga.  26. 

'  Regina  v.  Townsend,  28  Law  T.  100. 
[*658] 


§  IGl.]        MANDAMUS   ALLOWED   WHERE   IN'DICTMENT   LIES.  713 

mus,  was  no  sufficient  answer  to  the  application.'  But  wc  are 
not  to  understand  by  this  tliat  the  two  remedies  arc  regarded  as 
in  any  just  sense  concurrent,  and  at  the  election  of  the  party 
injured.  An  indictment  is  ordinarily  no  adequate  redress  for 
private  wrong.  The  case  of  a  nuisance,  put  by  Lord  Denman,  in 
the  last  case,  illustrates  the  subject  fairly.  The  indictment  only 
redresses  the  public  wrong  inflicted  by  a  nuisance.  One  who 
suft'crs  special  damage  is  entitled  to  a  private  action,  and  some- 
times to  specific  redress  in  equity  or  by  mandamus. 

*  2.  Hence,  where  a  railway  company,  after  having  comj)lctcd 
their  road,  under  an  act  of  parliament,  by  which  it  was  provided 
the  public  should  have  the  beneficial  enjoyment  of  the  same,  pro- 
ceeded to  take  up  the  railway,  a  mandamus  was  awarded  to  com- 
pel them  to  reinstate  it.^ 

3.  And  it  may  safely  be  affirmed  that  the  mandamus  will  be 
denied  where  there  is  other  adequate  remedy.^ 

1  Regina  v.  Bristol  Dock  Co.,  2  Q.  B.  61;  s.  c.  2  Railw.  Cas.  599;  Regina 
t'.  Manchester  &  Leeds  Railway  Co.,  3  Q.  B.  528. 

2  Rex  V.  Severn  &  Wye  Railway  Co.,  2  B.  &  Aid.  G4G.  Abbott,  C.  J., 
said,  ill  giving  judgment:  "If  an  indictment  had  been  a  remedy  equally  con- 
venient, beneficial,  and  effectual  as  a  mandamus,  I  should  have  been  of 
opinion  that  we  ought  not  to  grant  the  mandamus;"  but  it  is  not,  '"for  a 
corporation  cannot  be  compelled,  by  indictment,  to  reinstate  the  road." 
"  The  court  may,  indeed,  in  case  of  conviction,  impose  a  fine,  and  that  fine 
may  be  levied  by  distress ;  but  the  corporation  may  submit  to  the  payment  of 
the  fine  and  refuse  to  reinstate  the  road."  Grant  Corp.  270.  And  in  State  v. 
Hartford  &  New  Haven  Railroad  Co.,  29  Conn.  538,  this  writ  was  awarded  to 
compel  the  defendants  to  continue  to  run  trains  to  coimect  with  the  steam- 
boats on  the  Sound,  after  the  company  had  formed  a  connection  witli  the 
New  York  &  New  Haven  Railroad,  and  had  discontinued  running  trains 
across  that  portion  of  its  road  which  connected  with  tlie  steamboats.  And 
it  was  here  considered  that  a  contract  with  the  connecting  railway  to  discon- 
tinue connection  with  the  steamboats  for  some  equivalent  benefit  to  botli 
companies  was  void,  as  against  good  policy,  and  that  it  was  a  proper  case  for 
the  public  attorney  to  interfere  by  way  of  petition  for  mandamus. 

8  Regina  v.  Gamble  &  Bird,  11  A.  &  E.  C9;  Regina  v.  Victoria  Park  Co., 
1  Q.  B.  288;  Draper  v.  Noteware,  7  Cal.  270;  Williams  i:  County  Court 
Judge,  27  Miss.  225;  Trustees  i'.  State.  11  Ind.  205;  Bush  r.  Beaven.  1  H. 
&  C.  500;  s.  c.  32  Law  J.  Exch.  54.  But  in  People  r.  Hilliard.  29  111.  41:^ 
the  court  hold,  that  it  is  not  indispensable  that  the  petition  sliould  state  that 
the  relator  is  without  any  other  sufficient  remedy.  If  such  appear  to  the 
court  to  be  the  fact,  the  alternative  writ  will  not  be  quashed.  Id.  But  see 
School  Board  v.  People.  20  111.  52.">,  contra.  People  r.  Wood.  35  Barb.  05' : 
Goodwin  r.  Glazer,  10  Cal.  333.     But  the  existence  of  an  equit.iblo  rem-^dy  i< 


714  MANDAMUS.  [PAET   VII. 

SECTION   XII. 

Judgment  upon  Petition  for  Mandamus  revisahle  in  Error. 

§  162.  In  tliosc  states  where  the  court  having  jurisdiction  to 
award  the  writ  of  mandamus  is  not  the  court  of  last  resort,  the 
judgment  upon  applications  for  such  writs  is  revisable  upon  writ 
*  of  crror.i  But  it  is  said  not  to  be  the  province  of  a  court  of 
error  to  issue  the  writ  of  mandamus,  unless  the  power  is  con- 
ferred by  statute.^ 

no  ground  for  refusing  mandamus.     Commonwealth  v.  Alleghany  Commis- 
sioners, 32  Penn.  St.  218. 

^  Regina  v.  Manchester  &  Leeds  Railway  Co.,  9  Q.  B.  528,  reversing  the 
judgment  of  the  King's  Bench  in  s.  c.  1  Railw.  Cas.  523,  this  last  hearing 
being  in  the  Exchequer  Chamber.  Statute  6  &  7  Vict.  c.  67.  §  2,  gives  the 
right  to  a  writ  of  error.  But  on  general  principles,  it  is  as  much  revisable  as 
judgment  on  habeas  corpus.  Ex  parte  Holmes,  14  Pet.  5i0.  Cowell  v. 
Buckelew,  14  Cal.  640.  See  also  Columbia  Insurance  Co.  v.  Wheelright,  7 
Wheat.  534.  The  matter  of  granting  the  writ  of  mandamus,  being  discre- 
tionary in  the  court,  should  not  preclude  a  revision  of  the  questions  decided 
by  the  court  below  as  matter  of  law.  AVhen  tlie  writ  is  denied  as  matter  of 
discretion,  that  judgment  is  of  course  not  revisable  in  a  court  of  error. 

2  Angell  &  Ames  Corp.  §  697. 
[*660] 


§  103.] 


TO   REVISE    PUOCEEDINCJS    AGAINST   UAILWAYS. 


71; 


♦CHAPTER    XXIV. 

CERTIORARI. 


SECTION    I. 


To  revise  Proceedings  against  Railways. 


1.  Lies  to  bring  up  unfinislied  proceed- 
ings, or  revise  tliose  not  according 
to  the  common  law. 
n.(a)  Lies  not  in  lieu  of  appeal  or 
writ  of  error.  Barred  by  statute 
making  decision  final. 


2.  Writ  of    very    extensive  application, 

unless  controlled  by  statute. 

3.  Judgment  in  case  fully  hoard  in  King's 

Bench  on  rule  to  show  cause,  judg- 
ment entered  without  waiting  to 
bring  up  record  on  certiorari. 


§  1G3.  1.  Where  the  proceedings  against  a  railway  arc  in  a 
court  of  record,  and  according  to  the  course  of  the  common  law, 
after  final  judgment  the  writ  of  error  is  the  appropriate  process 
for  their  revision  in  a  superior  court,  and  the  writ  of  certiorari  will 
not  lic.^  (a)     But  the  certiorari  is  the  proper  process  to  bring  up 

1  King  V.  Pennegoes,  1  B.  &  C.  112;  s.  c.  2  D.  &  R.  209;  Queen  v.  Dixon, 
3  Salk.  78.  Certiorari  is  the  appropriate  remedy  to  revise  erroneous  rulings  of 
county  commissioners,  when  there  is  no  mode  of  revision  appointed  by  law. 
Mendon  v.  County  Commissioners,  2  Allen,  4G3.  The  same  principle  is  main- 
tained in  People  v.  Board  of  Delegates,  14  Cal.  479.  It  does  not  lie  to  review 
acts  simply  ministerial,  but  all  acts  of  a  judicial  nature,  whether  of  a  court  or 
a  municipal  board.  Robinson  r.  Supervisors,  IG  Cal.  208.  And  see,  to  the 
same  point,  People  v.  Board  of  Iloalth,  33  Barb.  341;  People  i-.  Hester,  6  Cal. 
679;  Sewickley,  2  Grant  Cas.  135;  Justice  of  Lee  County  v.  Hunt,  29  Ga.  155. 
But  see  Camden  v.  Mulford,  2  Dutcher,  49;  State  v.  Jersey  City,  2  Dutcher,  441. 
The  power  of  review  on  a  common-law  certiorari  extends  not  only  to  questions 
affecting  the  jurisdiction  of  the  magistrate  and  the  regularity  of  the  proceed- 
ings before  him,  but  to  all  other  legal  questions.  Mullins  v.  People,  24  N.  V. 
399;  Jackson  v.  People,  9  ]\Iich.  111.  But  see  People  v.  Van  Alstyne,  32 
Barb.  131;  People  r.  Board  of  Delegates,  14  Cal.  179.  Only  questions  raised 
by  the  record  can  be  considered.  People  v.  Wheeler,  21  N.  Y.  ti2.  And  see 
Frederick  v.  Clarke,  5  Wis.  191;  Greenway  v.  Mead,  2  Dutcher,  303;  Low  v. 
Galena  &  Chicago  Railway  Co.,  18  111.  324;  In  re  Mayo  County,  14  Ir.  Com. 
Law,  392. 

(rt)  In  general  certiorari  will  not  western  Railway  Co.,  101  111.  193. 
issue  in  lieu  of  an  appeal  or  of  a  writ  But  it  may  issue  where  counsel  has 
of  error.      Scates  i-.  Chicago  &  North-     been  misled  by  opposing  counsel  as  to 

[•GGIJ 


716  CERTIORARI.  [PART    VII. 

an  unfinished  proceeding^  in  an  inferior  court  of  record,  or  a 
summary  *  proceeding  in  such  court,  not  according  to  the  course 
of  the  common  law,  after  judgment  thereon,  and  where  there  is 
alleged  error  in  the  proceedings.^ 

2.  This  writ  is  of  universal  application,  unless  taken  away  by 
the  express  words  of  the  statute,  or  where  the  superior  court  is 
not  the  proper  tribunal  to  proceed  with  the  cause. ^  (i)  And  in 
such  case  the  cause  may  be  brought  up,  and  any  error  corrected, 
and  then  remanded  to  the  inferior  court,  with  a  writ  of  mandamus 
in  the  nature  oi  y^  procedendo ;  or  the  mandamus  may  be  awarded, 
in  the  first  instance,  directing  the  inferior  court  to  proceed  and 
finish  the  case  upon  its  merits.^ 

2  The  writ  of  certiorari  before  judgment  corresponds  to  the  writ  of  error 
after  it^  Commonwealth  v.  Simpson,  2  Grant  Cas.  438.  And  a  proceeding 
by  certiorari  is  like  an  appeal,  and  is  governed  by  the  same  rules,  so  that  the 
plaintiff  can  dismiss  the  case  in  the  appellate  court,  and  leave  the  whole  mat- 
ter as  if  no  steps  had  been  taken  therein.  Joliet  &  Chicago  Railroad  Co.  v. 
Barrows,  24  111.  5G2. 

8  Where  a  party  has  had  no  notice  of  an  assessment  of  damages  for  land 
taken,  until  after  the  time  limited  for  the  appeal  has  expired,  he  may  have  the 
decision  reviewed  by  certiorari.  Joliet  &  Chicago  Railroad  Co.  v.  Barrows,  supra. 
And  see  McConnell  v.  Caldwell,  6  Jones  N.  C.  409;  Aycock  v.  Williams,  18 
Tex.  392.  In  the  last  case  it  was  held,  that,  if  a  justice  of  the  j)eace  grant  a 
new  trial  witliout  notice  to  the  adverse  party,  who  does  not  appear  at  the 
second  trial,  the  latter  may  either  enjoin  the  collection  of  the  judgment  thus 
rendered,  or  remove  the  cause  to  the  District  Court  by  certiorari.  And  certio- 
rari will  be  granted  to  bring  up  an  order  of  Quarter  Sessions  which  was  void 
on  the  ground  of  interest  in  the  justices.  See  McHeran  v.  Melvin,  3  Jones 
Eq.  195;  Darling  v.  Xeill,  15  Tex.  101;  In  re  Robson,  6  Mich.  137;  Clary  v. 
Hoagland,  5  Cal.  476.  And  one  against  whom  a  judgment  is  sought  to  be 
enforced,  though  not  a  party  to  the  proceedings,  may  apply  for  a  certiorari. 
Clary  v.  Hoagland,  supra.  And  see  Regina  v.  Bell,  8  Cox  C.  C  28;  Regina 
V.  Hammond,  12  W.  11.  208;  Regina  v.  London  &  Xorth western  Railway  Co., 
12  W.  R.  208. 

*  Woodstock  V.  Gallup,  28  Vt.  587;  s.  c.  1  Redf.  Am.  Railw.  Cas.  485; 
Ottawa  V.  Chicago  &  Rock  Island  Railway  Co.,  25  111.  43.    And  in  New  York  the 

the  time  when  an   appeal  should  be  (?>)  It  will  not  issue  from  a  federal 
taken.     Parker  v.  Wilmington  &  Wei-  circuit  court  to  a  state  court  for  there- 
don  Railroad  Co.,  81  N.  C.  118.  moval  of  proceedings  against  a  cora- 
A  common-law  certiorari  as  well  as  pany,  under  a  statute  like  that  of  Illi- 
an  appeal  is  barred  by  a  statute  which  nois  of  1873.    State  v.  Chicago  &  Alton 
provides  that  the  decision  of  the  court  Railroad  Co.,  6  Bissell,  107. 
shall  be  final.     People  v.  Betts,   55 
X.  Y.  GOO. 
[*G62] 


§  1G4.]        WIIERK   THERE   IS    AN    EXCESS   OF   JURISDICTION.  717 

*  3.  AVhcrc  the  case  is  fully  heard  in  rofrard  to  its  merits,  upon 
the  rule  to  show  cause,  and  there  is  no  dispute  about  the  faels 
it  is  common  for  the  court  of  King's  Bench  to  give  judgment, 
without  waiting  for  the  record  to  be  brouglit  up  on  certiorari^' 
similar  to  the  course  we  have  intimated  in  regard  to  applications 
for  mandamus.^ 


SECTION   II. 

Where  there  is  an  Excess  of  Jurisdiction. 

§  164.  Where  there  is  an  excess  of  jurisdiction,  the  appropri- 
ate remedy  ordinarily  is  by  action  of  trespass.     And  in  such  cases 

only  way  of  reviewing  a  decision  of  a  justice  of  the  peace  in  summary  proceed- 
ings is  by  a  certiorari.  Romaine  v.  Kinshimer,  2  Hilton,  519 ;  Regina  v.  Bristol 
&  Exeter  Railway  Co.,  11  A.  &  E.  202;  Croffe  v.  Smith,  3  Salk.  79.  It  is  here 
said  that  there  is  no  jurisdiction  which  can  withstand  a  certiorari,  but  that  if  the 
certiorari  be  taken  away,  by  the  express  words  of  the  statute,  the  court  will  not 
indirectly  accomplish  the  same  thing  by  mandamus.  Rex  v.  York  Justices, 
1  A.  &  E.  5G:J;  Rex  v.  Fell,  1  B.  «&  A.  3S0;  Rex  v.  Saunders,  5  D.  &  R.  Gil. 
Where  the  certiorari  on  a  given  subject  is  taken  away  by  act  of  parliament,  it 
must  be  understood  as  extending  only  to  the  terms  of  the  act,  and  for  some- 
thing done  in  pursuance  of  it.  Denman,  C.  J.,  Regina  v.  Sheffield,  Ashton- 
under-Lyne,  &  Manchester  Railway  Co.,  11  A.  &  E.  194;  s.  c.  1  Railw.  Cas. 
537,  545.  Patteson,  J.,  "  Where  there  is  a  total  want  of  jurisdiction  and  par- 
ties have  proceeded  in  defiance  of  certiorari,  it  is  not  taken  away."  South  Wales 
Railwaj'  Co.  v.  Richards,  G  Railw.  Cas.  197.  See  Jubb  v.  Hull  Dock  Co.,  9  Q-  B. 
443.  Denman,  C.  J.,  intimates,  that  where  the  certiorari  is  taken  away,  in  re- 
gard to  proceedings  imder  an  act  of  parliament,  that  will  not  deprive  the  party 
of  that  remedy,  when  the  proceeding  is  complained  of  as  not  coming  witiiin 
the  act,  although  some  part  of  the  proceedings  is  confessedly  within  the  act, 
citing  Rex  r.  Justices  of  Kent,  10  B.  &  C.  477.  See  Regina  v.  St.  Olaves, 
8  Ellis  &  B.  529.  The  right  to  have  proceedings  revised  in  the  Supreme  Court 
does  not  deprive  the  party  of  the  right  to  bring  certiorari.  Vanwii-kle  r. 
Camden  &  Amboy  Railway  Co.;  Bennet  r.  Same,  14  N.  J.  Law,  145,  1G2. 
A  certiorari  suspends  all  proceedings  in  a  case  till  it  is  decided.  Taylor  r. 
Gay,  20  Ga.  77. 

6  In  re  Edmundson,  17  Q.  B.  G7;  s.  c.  24  Eng.  L.  &  Eq.  1G9.  Tliis  was  a 
case  whore  the  statute  required  the  complaint  to  be  made  within  six  months 
after  the  cause  of  action  arose,  and  for  non-compliance  with  this  requirement 
the  court  held  the  proceedings  liable  to  be  quashed,  and  granted  the  certiorari, 

'  Supra,  §  152.  On  certiorari  the  court  will  not  reverse  a  judgment  for 
error  in  taxing  costs,  but  will  correct  the  error.  Marshall  v.  Burton,  5  liar- 
ring.  Del.  295. 

[•663] 


718 


CERTIORARI. 


[part   VII. 


the  court  have  more  commonly  refused  to  give  redress,  either  by 
certiorari  or  mandamus.^  (a)  But  it  is  not  considered  that  a 
statutory  provision,  taking  away  the  writ  of  certiorari,  for  any- 
tliing  done  under  the  act  of  incorporation  or  the  general  statutes 
as  to  railways,  applies  to  things  done  wholly  without  the  jurisdic- 
tion conferred.^ 


^SECTION    III. 


Jurisdiction  and  Mode  of  Procedure. 


1.  Lies  ill   cases  of  irregularity,  unless 

taken  away  by  statute. 

2.  Inquisitions  before  officers,  not  known 

in  the  law. 


Issuing  of  the  writ  matter  of  discre- 
tion.    Defects  not  amendable. 

Not  allowed  for  irregularity  in  pro- 
ceedings, or  evidence,  or  form  of 
judgment. 


§  165.  1.  Although  it  is  held  that  a  statutory  provision,  deny- 
ing the  certiorari,  is  to  be  limited  to  matters  within  the  jurisdiction 
conferred,  and  will  not  restrict  tlie  power  of  the  court  in  regard  to 
matters  wholly  beyond  the  jurisdiction,  the  same  rule  cannot  be 
extended  to  mere  irregularity  in  the  exercise  of  the  jurisdiction. 
For  unless  the  prohibition  of  the  writ  could  apply  to  such  cases, 

1  Regina  v.  Bristol  &  Exeter  Railway  Co.,  2  Railw.  Cas.  09;  11  A.  &  E. 
202;  Regina  v.  Sheffield  &  Ashton-under-Lyne  &  Manchester  Railway  Co.,  11 
A.  &  E.  191;  s.  c.  1  Railw.  Cas.  537,  515.  The  court  will  rarely  grant  this 
writ  where  the  party  has  an  opportunity  to  litigate  the  question  in  an  action 
at  law.  People  v.  Board  of  Health,  33  Barb.  341.  And  see  Baltimore  &  Havre- 
de-Grace  Turnpike  Co.  v.  Northern  Central  Railroad  Co.,  15  Md.  193;  Pea- 
body  r.  Buentillo,  18  Tex.  313;  Clary  v.  Hoagland,  13  Cal.  173. 

2  Supra,  §  163;  Regina  i\  Sheffield,  Ashton-under-Lyne,  &  Manchester 
Railway  Co.,  11  A.  &  E.  194;  s.  c.  1  Railw.  Cas.  545;  So'uth  Wales  Railway 
Co.  V.  Richards,  6  Railw.  Cas.  197;  Regina  i-.  Lancashire  &  Preston  Railway 
Co.,  6  Q.  B.  759;  3  Railw.  Cas.  725.  Where  a  jury,  summoned  under  statute 
8  &  9  Vict.  c.  18,  §  68,  have  taken  into  consideration,  in  awarding  compensa- 
tion, a  claim,  among  others,  as  to  which  they  had  no  jurisdiction,  a  certiorari 
lies,  although  such  excess  of  jurisdiction  does  not  appear  on  the  face  of  the  pro- 
ceedings, but  it  may  be  shown  by  affidavit.     In  re  Penny,  7  Ellis  &  B.  6G0. 


(a)  Though  not  to  be  favored 
where  there  is  other  adequate  rem- 
edy, certiorari  will  issue  to  review 
proceedings   to   condemn   land   when 

[*664J 


void  for  want  of  jurisdiction.  Dun- 
lap  V.  Toledo,  Ann  Arbor,  &  Grand 
Trunk  Railway  Co.,  46  Mich.  190. 


§  1G5.]  JURISDICTION    AND    MODP:   OF    PROCEDURE.  719 

it  coultl  have  no  apiilication,  and  it  is  incumbont  upon  the  court  to 
give  it  a  reasonable  operation  and  construction.'  (a) 

2.  An  iufpusitiou  taken  before  two  undcr-sherifrs  extraordinary, 
will  be  set  aside  on  that  ground.'*  But  an  inquisition  taken  before 
a  clerk  of  the  under-sheriff,  and  an  assessor  apjtointed  pro  hac 
vice  by  the  sheriff,  although  none  of  the  persons  named  in  the  act 
for  such  an  oflice,  will  not  be  quashed  on  certiorari? 

3.  The  granting  of  the  certiorari  is  matter  of  discretion,*  al- 
though there  are  fatal  defects  on  the  face  of  the  proceedings  which 
it  is  sought  to  bring  up.'^  The  affidavits  should  swear  positively 
*  and  specifically  to  the  existence  of  the  defects  relied  upon.^  And 
where  the  party  applying  for  the  writ  fails,  from  incomijletcness 
in  the  affidavits,  he  will  not  have  a  certiorari  granted  him,  upon 
fresh  affidavits  supplying  the  defects.^     The  conduct  of  the  j)rose- 

^  Regina  v.  ShefReld,  Asliton-nnder-Lyne,  &  Manchester  Railway  Co.,  1 
Railw.  Cas.  f.:]?;  11  A.  &  E.  194. 

-  Denny  v.  Trapnell,  2  Wils.  370.  This  decision  is  on  the  ground  that  the 
sheriff  can  appoint  only  one  under-sheriff  extraordinary. 

8  Regina  v.  Sheffield,  Ashton-under-Lyne,  &  Manchester  Railway  Co.,  11 
A.  &  E.  19i.  Thus  showing  the  disposition  of  the  courts  to  sustain  the  pro- 
ceedings when  not  in  contravention  of  the  express  terms  of  the  statute. 

*  State  V.  Hudson,  5  Dutchcr,  115;  In  re  Lantis,  9  Mich.  324;  People  r. 
Board  of  Health,  33  Barb.  314;  Johnson  r.  McKissack,  20  Tex.  160;  People 
I'.  Peabody,  26  Barb.  437;  Handle  v.  Williams,  18  Ark.  380;  In  re  Mayo 
County,  14  Ir.  Com.  Law,  392;  Regina  r.  Reynolds,  13  \\.  R.  925;  s.  c.  12 
Law  T.  N.  s.  580. 

^  Regina  r.  Manchester  &  Leeds  Railway  Co.,  8  A.  «fc  E.  413.  Lord  Dkx- 
MAN  says,  "  I  disclaim  the  principle,  that  we  are  to  issue  a  certiorari  to  bring 
up  the  inquisition,  on  the  ground  that  there  may  probably  be  defects;  we 
must  clearly  see  that  facts  do  exi.st  which  will  bring  the  defects  before  us." 
And  an  individual  member  of  a  corporation  cannot  carry  on  suit  by  bringing 
cerliorori  in  the  name  of  the  corporation  without  the  consent  of  a  legal  major- 

(a)  A  certiorari  .should  not  issue  to  528;  Portland  &  Ogdensburg  Railroad 

remove     condemnation     proceeding.s,  Co.    r.   Commissioners,  64    Me.  505; 

where  the  writ  might  do  injury   by  Dunlap    r.    Toledo,    Ann     Arl>or,    & 

causing   delay,  and   where  the  ques-  (Irand  Trunk  Railway  Co.,  46  Mich- 

tions  to  be  raised  may  be  raised  after  100;    Schroeder    v.     Detroit,    Grand 

the  inquest.     Detroit  Western  Transit  Haven,    &    Milwaukee    Railway  Co., 

Railroad  Co.  v.  Backus,  48  Mich.  582.  44  Mich.  387. 

See  further,  as  to  its  employment  for  As  to  .<;ervice  and  return,  see  State 
the  revision  of  condemnation  proceed-  v.  New  Brunswick  Commissioners.  37 
ings,  California  Pacific  Railroad  Co.  f.  N.  J.  Law,  301;  Southwestern  Rail- 
Central  Pacific  Railroad  Co.,  47  Cal.  road  Co.  r.  Baldwin,  57  Ga.  150. 


720  CERTIORARI.  [PART   VII. 

cutor,  especially  if  it  had  a  tendency  to  induce  the  defects  com- 
plained of,  is  important  to  be  considered  in  determining  the 
question  of  discretion,  in  regard  to  issuing  the  writ.^ 

4.  The  court  will  not  ordinarily  quash  proceedings  in  inferior 
tribunals  for  mere  formal  irregularity  in  the  proceedings  or  the 
testimony  received,  especially  when  there  was  no  objection  made 
at  the  time  ;  nor  will  the  form  of  the  judgment  or  decree  be  con- 
sidered any  sufficient  ground  for  allowing  the  writ,  provided  sub- 
stantial justice  has  been  done.'^ 

ity  of  the  members  thereof.  Silk  Manufacturing  Co.  v.  Campbell,  3  Dutcher, 
539. 

«  Regina  v.  South  Holland  Drainage,  8  A.  &  E.  429. 

■^  Salem  &  South  Danvers  Kailroad  Co.  v.  County  Commissioners,  9  Allen, 
563. 

[*665] 


§  IGG.]       INFORMATIONS    IN   THE   NATURE   OF   QUO    WARRANTO.  721 


•CHAPTER    XXV. 


INFORMATIONS    IN    THE    NATURE    OF    QUO    WARRANTO. 


1.  General  nature  of  the  remedy.     Now 

mucli  controlled  by  statute. 

2.  Its  exercise,  in  absence  of  statute,  con- 

fined to  highest   court   of  ordinary 
civil  jurisdiction. 

3.  In   the  English   practice,  this  remedy 

extended  to  municipal,  but   not  to 
private  corporations. 

4.  In  this  country  it  has  been  extended  to 

private  corporations. 

5.  It  will  remove  an   usurper  of    office, 

but  not  restore  the  one  rightfully  en- 
titled. 

6.  Nor  will  it  lie  to  prevent  railway  com- 

pany from  opening  part  of  road  un- 
til rest  is  completed. 

7.  Nor  against  company  for  the  issue  of 

stock  below  par,  or  for  beginning  to 
build  road  before  subscription  is  full. 


8.  Form  of  the  judgment  depends   on 

facts  proved  and  object  sought. 
0.  Rules  in  regard  to  ta.xing  costs. 

10.  Used  to  test  corporate  existence  and 

power. 

11.  Penalties   provided   by  charter   can- 

not subsequently  be  increased  to  a 
forfeiture. 

12.  But  a  grant  of  corporate   franchises 

may  be  annulled  when  its  purposes 
have  failed. 

13.  Scire  facias  tiie  proper  remedy  to  de- 

termine forfeiture. 

14.  Insufficient  excuses  for  failure  to  re- 

pair a  turnpike  road. 

15.  This   remedy,  under  some   statutes, 

does  not   supersede  any  equitable 
redress. 


C 


§  166,  1.  This  is  a  subject  of  very  extensive  application  to  cor- 
porations, for  the  purpose  of  determining  wlien  they  have  forfeited 
their  corporate  francliises,  or  usurped  those  not  rightfully  belong- 
ing to  them,  and  for  numerous  other  purposes.^  It  will  be  found 
treated  very  much  at  length  in  treatises  upon  corporations.^     Wo 

1  See  Palmer  r.  Woodbury,  M  Cal.  43;  Gano  v.  State,  10  Ohio  St.  237; 
Parker  «.  Smith,  3  Minn.  240;  Cleaver  r.  Commonwealth,  34  I'enn.  St.  283; 
People  v.  Tlidfiely,  21  111.  65;  Scott  v.  Clark,  1  Clarke,  70;  Mississippi,  Oua- 
chita, &  Red  River  Railway  Co.  v.  CroR.s,  20  Ark.  413,  495. 

2  Ancro]]  &  Ames  Corp.  §§  731-7G5.  See  State  v.  Mississippi.  Ouachita,  &  Red 
River  Railway  Co.,  20  Ark.  443.  495;  State  v.  Brown,  5  R.  I.  1;  Lindsey  •'. 
Attorney- General,  33  i\Iis.s.  508.  The  information  may  set  fortli  specifically 
the  grround  of  forfeiture  relied  on,  or  may  call  on  the  corporation  to  show  by 
vehat'warrant  it  still  claims  to  exercise  its  corporate  franchises ;  and  the  informa- 
tion, like  any  other  criminal  information,  is  regarded  as  amendable.  Common- 
wealth V.  Commercial  Rank,  28  Penn.  St.  383.  And  the  information  must 
acquaint  the  court  \\itli  tlie  charter  of  the  company,  .so  as  to  show  its  )X)wer8 
and  duties.     Danville  &  AVhite  Lick  Plank-Road  Co.  v.  State.  16  Ind.  456. 

VOL.  I.  — 46  [*666] 


722     INFORMATIONS   IN   THE   NATURE   OF   QUO    WARRANTO.    [PART   VII. 

should  scarcely  feel  justified  in  going  into  the  subject  further 
here  than  it  has  a  special  application  to  railways.  The  form  of 
the  proceedings  in  modern  times  is  by  information  of  the  at- 
torney-general, or  other  public  prosecuting  officer,  on  behalf  of 
*  the  state,  or  sovereignty,  in  the  nature  of  a  quo  warranto,  upon 
which  a  rule  issues  to  the  defendant  to  show  by  what  warrant  he 
exercises  the  function  or  franchise  called  in  question.^  These  pro- 
ceedings are  now  very  much  controlled  in  England  and  in  the 
American  states  by  statute  defining  the  jurisdiction  and  the  form 
of  process. 

2.  In  the  absence  of  -special  provisions,  the  highest  courts  of 
ordinary  civil  jurisdiction  are  accustomed  to  exercise  the  prerog- 
ative right  of  sovereignty,  to  issue  this  process,  as  well  as  other 
prerogative  writs,  such  as  a  mandamus,  certiorari,  procedendo, 
prohibition,  &c.  In  some  of  tlie  states  the  courts  refuse  to  ex- 
ercise any  such  prerogative  rights.*  And  in  others  this  power  is, 
by  statute,  conferred  upon  the  Court  of  Chancery,  but  in  other 
forms.^ 

3.  The  English  courts  do  not  seem  to  have  allowed  the  exercise 
of  this  proceeding  in  the  case  of  mere  private  corporations,  al- 
though there  are  numerous  cases  in  the  English  books  of  its  exer- 
cise in  regard  to  municipal  corporations,^  and  others  of  an  impor- 
tant public  character. 

8  State  v.  Brown,  33  Miss.  500. 

*  State  V.  Asliley,  1  Pike,  279;  State  v.  Turk,  Mart.  &  Yerg.  287;  Attor- 
ney-General V.  Leaf,  9  Humph.  753.  See  also  State  v.  Merry,  3  Mo.  278; 
State  i>.  McBride,  4  Mo.  303;  State  v.  St.  Louis  Perpetual  Marine,  Fire,  & 
Life  Insurance  Co.,  8  Mo.  330,  where  in  the  latter  state  it  was  held  the  writ 
should  issue.  In  Pennsylvania  the  Supreme  Court  has  authority  to  try  by 
mandamus  or  quo  warranto  whether  or  not  a  contract  entered  into  between  two 
different  corporations  is  in  excess  of  the  lawful  powers  of  either,  and  if  either 
corporation  is  exercising  rights  or  franchises  to  which  it  is  not  entitled,  then 
to  oust  it  therefrom;  and  the  proceeding  may  be  either  at  law  or  in  equity, 
provided  the  right  of  trial  by  jury  is  not  interfered  with.  Commonwealth  v, 
Delaware  &  Hudson  Canal  Co.,  43  Penn.  St.  295. 

6  State  V.  Turk,  Mart.  &  Yerg.  287;  State  v.  Merchants'  Insurance  Co., 
8  Humph.  253;  Attorney-General  v.  Leaf,  9  Humph.  753. 

«  Rex  i;.  Williams,  1  Bur.  402;  Ptex  v.  Breton,  4  Bur.  2260;  Ptcx  v.  Pligh- 
more,  5  B.  &  Aid.  771;  Rex  v.  M'Kay,  4  B.  &  C.  351;  Ex  parte  Smyth,  11 
W.  R.  754;  s.  c.  8  Law  T.  n.  s.  458;  Regina  r.  Hampton,  13  Law  T.  n.  s. 
431.  The  same  rule  obtains  in  regard  to  this  proceeding  in  this  respect  in 
England  as  in  regard  to  mandamus.     Supra,  §  155;  Rex  v.  Lowther,  1  Stra. 

[*667] 


§  IGC]       INFORMATIONS   IN   THE   NATURE   OF   QUO    WARRANTO.         723 

*4.  But  there  is  no  question  that  in  tlic  American  stuic-s  this 
form  of  i)rocccdin^  is  extended  to  aggregate  corporations  in  gen- 
eral, and  more  especially  to  the  case  of  banks  and  railways,  which 
partake  in  some  sense  of  a  public  character."  (a)  The  general 
principles  which  we  have  found  applicable  to  the  subject  of  nian- 
danuis,  will  for  the  most  part  apply  to  this  proceeding.^ 

5.  Tlie  court  cannot  establish  corporate  ofhccrs,  who  would 
have  been  elected  had  all  the  legal  votes  offered  been  received 
by  the  inspectors.^     The  only  remedy  is  to  set  aside  the  election. 

037;  Rex  v.  Mousley,  8  Q.  B.  957,  decided  in  1846,  where  it  is  held  that  the 
mastership  of  a  hospital  or  a  grammar  school  was  not  of  so  public  a  character 
as  to  justify  the  exercise  of  this  remedy;  nor  tlie  office  of  a  churchwarden.  In 
re  Harlow,  30  Law  J.  Q.  B.  271;  s.  c.  5  Law  T.  N.  8.  289. 

'  Commonwealth  v.  Arrison,  15  S.  &  R.  128;  People  v.  Thompson,  21  Wend. 
235;  s.  c.  23  Wend.  537  ;  Commonwealth  v.  L'nion  Insurance  Co.,  5  Mass.  231  ; 
People  V.  River  Raisin  &  Lake  Erie  Railroad  Co.,  12  Mich.  381.  See  supra, 
§  153;  State  v.  Concord  &  Montreal  Railroad  Co.,  25  Vt.  433;  Grand  Gulf 
Railway  v.  State,  10  Sm.  &  M.  427;  State  v.  Ilunton,  28  Vt.  594.  But  if  aji 
election  of  managers  of  a  corporation  be  not  disputed  during  their  term  of 
office  by  quo  warranto,  and  they  are  permitted  to  act  throughout  their  term  as 
managers  de  facto,  the  legality  of  the  next  election  cannot  be  questioned  for 
any  vice  or  irregularity  in  the  first.  A  writ  of  quo  u-arranto  brought  during 
the  term  of  an  office  may  be  tried  after  the  term  has  expired,  but  title  to  a 
term  of  office  already  expired  at  the  issue  of  the  writ,  cannot  be  determined 
in  this  manner  by  proceedings  instituted  against  those  afterwards  succeeding 
to  the  office.  Commonwealth  v.  Smith,  45  Penn.  St.  59.  This  writ  will  be 
granted,  although  the  defendant  has  resigned  the  office,  if  the  object  of  tho 
relator  is  not  only  to  cause  the  defendant  to  vacate  the  olFice,  but  to  establish 
another  candidate  in  the  office,  as  the  relator  is  entitled  in  such  case  to  have 
judgment  of  ouster,  or  a  disclaimer  on  the  record.  Queen  r.  Blizard,  Law 
Rep.  2  Q.  B.  55.  In  Neall  v.  Hill,  IG  Cal.  145,  it  is  said  tliat  the  removal  of  a 
mere  private  or  ministerial  officer  of  a  coi-poration  is  a  riglit  that  belongs  to 
the  corporation  alone,  and  the  courts  have  no  jurisdiction  to  remove  such 
officer,  or,  it  seems,  even  to  enjoin  him  from  acting. 

8  Supra,  §  151  et  srq.  And  see  State  t".  Commercial  Bank,  33  ^liss.  474, 
where  the  acts  and  omissions  that  will  allow  a  forfeiture  of  the  charter  by  quo 
warranto,  are  discussed. 

9  In  re  Long  I.sland  Railroad  Co..  19  Wend.  37;  2  Am.  Railw.  Cxs.  453. 
In  quo  warranto  against  a  usurper  by  a  claimant,  it  is  competent  for  the  court 

(«)  But  see  Eliason  v.  Coleman,  9  cognizance,  and    parties   have   there- 
Am.  &  Eiig.   Railw.    Cas.    433.     An  fore  a  riglit  to  trial  by  jury.     People 
action  in  the  nature  of  a  71/0 /rarran^o,  v.   Albany  &    Susquehanna  R;iilroad 
under  the  New  York  code,  to  try  the  Co.,  57  N.  Y.  IGl. 
title  to  a  corpofate  office,  is  of  legal 

[•668] 


724     INFORMATIONS    IN    THE    NATURE    OF    QUO    WARRANTO.    [PART    VII. 

And  the  court  will  not  proceed  by  mandamus  to  fill  an  office  until 
the  title  is  first  tried.^*^ 

*  6.  And  where  a  railway  company  were  authorized  to  make  a 
line  with  branches,  and  they  completed  a  portion  of  it,  but  aban- 
doned other  parts  of  it,  this  is  not  a  public  mischief,  which  will 
entitle  the  attorney-general  to  file  an  information,  in  the  nature  of 
a  quo  warranto  against  the  company,  to  prevent  them  from  open- 
ing the  part  completed,  until  the  whole  is  perfect.'^ 

7.  And  an  information  in  the  nature  of  a  quo  warranto,  under 
the  Massachusetts  statute,  will  not  lie  against  a  railway  company, 
in  behalf  of  a  stockholder,  merely  because  they  issued  stock  below 
the  par  value,^'^  and  began  to  construct  their  road  before  the  re- 
quisite amount  of  stock  was  subscribed,  it  not  appearing  that 
the  petitioner's  private  right  was  thereby  put  at  hazard. ^^ 

to  oust  the  usurper  without  determining  the  right  of  the  claimant.  Gano  v. 
State,  10  Ohio  St.  237.  See  Doane  v.  Scanuell,  7  Cal.  393;  People  v.  Same,  7 
Cal.  432.  One  who  is  a  relator  in  a  quo  warranto,  on  the  ground  of  the  use  of 
blank  voting  papers,  but  who  has  previously  used  blank  voting  papers  on  the 
same  and  former  elections,  and  has  been  formerly  elected  in  that  mode,  is  pre- 
cluded from  maintaining  the  writ  on  that  ground.  Sed  qucere.  Queen  v. 
Lofthome,  Law  Rep.  1  Q.  B.  433. 

10  Rex  V.  Truro,  3  B.  &  Aid.  590. 

"  Attorney- Genei-al  v.  Birmingham  &  Oxford  Junction  Railway  Co.,  3 
Macn.  &  G.  453;  s.  c.  8  Eng.  L.  &  Eq.  243. 

1^  See  Howe  v.  Derrel,  43  Barb.  504 ;  Commonwealth  v.  Farmers'  Bank,  2 
Grant.  Cas.  392. 

13  Hastings  v.  Amherst  &  Belchertown  Railroad  Co.,  9  Cush.  596.  In  this 
case  the  charter  provided  that  the  road  extend  "  through  Amherst."  Another 
section  of  the  charter  provided  that  the  road  might  be  divided  into  two  sec- 
tions, one  extending  "to  the  village  of  Amherst,"  and  the  other  from  "  Am- 
herst to  ^lontague."  It  was  held,  that  taking  land  for  the  road,  on  a  route 
not  terminating  "  in  either  village  of  Amherst,"  was  not  the  exercise  of  a  fran- 
chise, granted  by  the  charter.  Any  material  departure  from  the  points  desig- 
nated in  the  charter  for  the  location  of  a  railway  is  a  violation  of  the  charter, 
for  which  the  franchise  may  be  seized  on  quo  wan-anto,  unless  the  legislature 
has  waived  this  right  of  the  state  by  acts  recognizing  the  legality  of  such  vio- 
lation. Mississippi,  Ouachita,  &  Red  River  Railroad  Co.  v.  Cross,  20  Ark.  443. 
Where  an  act  incorporating  a  railway  provided  that  no  subsciiption  should  be 
received  and  allowed,  unless  there  should  be  paid  to  the  commissioners  at  the 
time  of  subscribing  five  dollars  per  share,  and  this  provision  was  not  complied 
with,  but  the  corporation  organized  itself,  elected  directors,  &c.,  and  began  the 
construction  of  its  road,  by  making  contracts  to  grade  it,  some  of  the  contrac- 
tors not  being  aware  of  this  failure  to  make  the  stipulated  payment  on  the 
shares  at  subscription,  and  one  of  the  stockholders,  who  was  aware  of  that 
[*669J 


§  IGG.]   INFORMATIONS  IN  TUE  NATUUL  OF  QUO  WARRANTO.    725 

8.  The  form  of  the  judcrmcnt  in  proceedings  of  this  character 
will  depend  upon  the  facts  proved,  and  the  object  to  be  attained. 
AVhcrc  the  defect  in  defendant's  riglit  is  merely  formal,  like  the 
omission  to  take  the  rerpiisite  oath,  the  judgment  is  for  a  suspen- 
sion *  of  the  exercise  of  the  function  until  qualified  by  compliance 
with  the  requisite  formality.^*  But  if  there  be  shown,  or  con- 
fessed, a  total  defect  of  title  in  defendant,  there  is  a  judgment  of 
ouster  or  forfeiture.^^  And  where  it  is  intended  to  dissolve  the 
corporation,  judgment  to  that  effect  should  be  given  in  form.^^ 

9.  The  relator  is  liable  to  costs  if  he  fail,  and  is  ordinarily  en- 
titled to  recover  costs  if  he  prevail.  But  where  the  ofilce  is  one 
where  the  party  is  compellable  to  serve,  and  is  accepted  and  held 
in  good  faith,  it  is  not  common  to  allow  costs  against  the  incum- 
bent u])on  judgment  of  ouster.^^ 

10.  In  some  of  the  states  a  process  or  proceeding  under  the 
name  of  "  Quo  Warranto  "  has  been  applied  to  test  tlie  question  of 
corporate  existence  and  power,  on  the  ground  of  forfeiture  of  cor- 
porate rights  by  means  of  the  omission  to  perform  acts  required 
by  the  charter,  or  of  an  excess  of  power  having  been  resorted  to, 
in  either  case  in  violation  of  granted  powers  and  duties.^'  (i) 

failure  when  he  became  a  stockholder,  and  who  had  voted  at  the  election  of 
directors,  and  otherwise  aided  in  setting  up  the  corporation,  applied  to  tlie 
court  for  leave  to  file  an  information  in  the  nature  of  a  quo  warranto  against 
the  directors,  to  compel  them  to  show  by  what  authority  they  exercised  their 
powers,  it  was  held  that  this  application  should  be  rejected.  Cole  v.  Dyer,  29 
Ga.  431. 

"  Kex  r.  Clarke,  2  East,  75.  But  a  judgment  of  ouster  will  conclude  the 
party  in  any  subsequent  proceeding,     lb. 

"  State  V.  Bradford,  32  Vt.  50;  Rex  r.  Tyrrell,  11  Mod.  335. 

"  Rex  V.  Wallis,  5  T.  R.  375;  State  v.  Bradford,  supra. 

"  Danville  &  White  Lick  Plank- Road  Co.  v.  State,  16  Ind.  456.  See  also 
People  V.  .Fackson  &  Michigan  IMaiik-Road  Co.,  9  Mich.  285,  where  the  extent 
of  the  remedy  and  the  form  of  procedure  is  extensively  discussed,  but  by  a 
divided  court. 

(h)  West   Jersey   Railroad    Co.    r.  from  going  on.     Aurora  &  Cincinnati 

Cape  ilay  &  Schellenberger's  Landing  Railroad    Co.    r.    Lawrenceburg,    56 

Railroad  Co.,  31  N.  J.  Eq.  164.    Tiie  Ind.    80.      As  to   disposition   of  the 

pendency  of  such  proceedings  founded  property  on  di.ssolution   in  such  pro- 

on  the  allegation  that   the  company  ceedinga,  see  State  v.  West  Wisconsin 

was  organized   to  do  an   illegal  act,  Railway    Co,    34    Wis.    197.       The 

will   not  hinder  a  decision   in   prior  granting  of  leave  to  file  an  infomi.'\ 

proceedings  to  enjoin    the   company  tion  in  the  nature  of  a  quo  warranlo  is 

[•670] 


726    INFORMATIONS  IN   THE   NATURE   OP   QUO   WARRANTO.     [PART   VII. 

11.  And  where  the  charter  of  a  plank-road  company  provides 
for  the  security  of  travel,  and  for  the  enforcement  of  the  duty  of 
the  company  by  suitable  penalties,  and  the  legislature,  after  the 
road  was  built  and  in  use,  imposed  an  entire  forfeiture  of  the 
whole  franchise  of  the  corporation  for  failure  to  keep  any  portion 
of  the  road  in  repair,  it  was  held  to  be  such  a  modilication  of  the 
charter  as  did  not  come  within  the  proper  exercise  of  the  police 
power  of  the  state,  and  therefore  void  as  a  violation  of  the  contract 
in  the  grant  of  the  charter.!^ 

12.  But  where  a  turnpike  charter  provides  penalties  upon  the 
company  and  its  agents  for  neglecting  to  keep  the  road  in  good 
and  perfect  repair,  such  provision  cannot  be  held  to  deprive  the 
state  of  its  sovereign  power  to  annul  a  grant  when  its  purposes 
have  failed,  through  either  the  positive  acts  or  neglect  of  the 
grantees  ;  and  when  the  fact  of  such  act  or  neglect  is  duly  estab- 
lished, the  special  remedy  provided  by  the  charter  will  be  regarded 
as  merely  cumulative.  It  is  of  the  very  essence  of  a  corporation, 
*  as  a  political  existence  or  abstraction,  that  it  should  always  be 
liable  to  dissolution  by  a  surrender  of  its  corporate  franchises, 
or  by  a  forfeiture  of  them  either  by  non-user  or  misuser.^^ 

13.  In  a  case  where  the  statute  directed  the  public  prosecuting 
officers  to  take  proceedings  to  determine  whether  the  charter  and 
franchises  of  a  turnpike  company  had  become  forfeited  by  non- 
user  or  abuser,  where  no  form  of  remedy  is  prescribed,  it  was 
held  that  scire  facias  was  the  proper  one  to  be  adopted,  and  all 
that  is  required  to  be  set  forth  in  the  writ  is  enough  to  inform  the 
company  of  the  causes  of  complaint  and  the  extent  of  redress 
sought.i^  This  procedure  is  very  much  the  same,  in  effect,  as 
that  by  quo  warranto,  already  discussed,  except  that  it  is  in  the 
form  of  a  civil  action.^^ 

"  People  V.  Jackson  &  Michigan  Plank-Road  Co.,  9  Mich.  285. 

19  Washington  &  Baltimore  Turnpike  Road  v.  State,  19  Md.  239.  The  par- 
ticular forms  of  the  pleading,  both  on  the  part  of  the  plaintiff  and  defendant, 
are  here  extensively  discussed,  as  well  as  many  questions  in  regard  to  the 
admissibility  of  evidence. 

matter  of  discretion.    People  -v.  North  Delaware   &   Bound  Brook  Railroad 

Chicago  Railway  Co.,  88  111.  537.   As  Co.,   38   N.    J.    Law,   282;    State  v. 

to  the  practice  in  the  filing,  &c.  of  such  Portland  &  Ogdensburg  Railroad  Co., 

information,  see"  Attorney-General  v.  58  N.  H.  113. 
[*671J 


§  16G.]       INFORMATIONS   IN   TUE   NATURE   OF   QUO    WARRANTO. 


r-i 


14.  It  is  no  excuse  for  a  turnpike  company  not  keeping:  its  road 
in  repair,  that  the  state  have  chartered  a  railway  aU)U<i  the  same 
route,  and  thereby  disabled  the  company  from  maintaining  its  road 
in  the  state  of  repair  required  by  the  charter.*'-'  N(jr  is  it  a  bar 
to  the  proceedings  that  the  company  have  applied  all  their  tolls  to 
tlie  repair  of  the  road.*^ 

15.  This  remedy  under  the  Massachusetts  General  Statutes,^'^ 
in  order  to  redress  an  injury  to  private  rights  or  interests  from 
the  exercise  by  a  private  corporation  of  a  franchise  or  privilege  not 
conferred  by  law,  does  not  supersede  the  jurisdiction  in  equity  in 
cases  of  private  nuisance.^^ 

20  Mass.  Gen.  Sts.  c.  145,  §  16. 

21  Fall  River  Irou  Works  v.  Old  Colony  &Fall  River  Railroad  Co.,  5  Allen, 
221. 

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END   OF   VOL.   I. 


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